UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
W ■!'
'*'W«<1»
j^iatoda piadtortttn Coronae.
THE HISTORY
OF THE
PLEAS OF THE CEOA¥N
BY
Bit Mati\)m §ak, lint.
SOME TIME LORD CHIEF JUSTICE OF THE COURT OF KING's BEXCH.
riRST PUBLISHED FROM HIS LORDSHIP'S ORIGINAL MANUSCRIPT, AND THE SEVERAL REFER-
ENCES TO THE RECORDS EXAMINED BY THE ORIGINALS, WITH NOTES BY
S O L L O M E M L Y N
OF LINCOLN'S INN, ESQ.
WITH A TABLE OF THE PRINCIPAL MATTERS.
Jirst :^merican (Kbition.
WITH NOTES AND REFERENCES TO LATER CASES
BY
W. A. STOKES AND E. INGERSOLL
OF THE PHILADELPHIA BAR.
^ IN TWO VOLUMES
VOL. I.
|]i)ilab'Clpl)ia:
ROBERT H. SMALL 25 MINOR STREET.
1847.
Y.1
r
Entered according to act of Congress in the year 1847, by
ROBERT H. SMALL,
In the office of the Clerk of the District Court of the Eastern District of
Pennsylvania.
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(1.
TO
HENEY J. WILLIAMS
THIS EDITION OP
ft
HALE'S HISTORY OF THE PLEAS OF THE CROWN
IS
RESPECTFULLY INSCRIBED.
28Cf)S0
EXTRACT FROM THE JOURNAL OF THE HOUSE OF COMMONS.
LUN^ 29° DIE NOVEMB. 1680.
Ordered, That the executors of Sir Matthew Hale, late Lord
Chief Justice of the court of King's Bench be desired to print the
MSS. relating to the crown law and that a committee be appointed
to take care in the printing thereof; and it is referred to
Sir Will. Jones, Mr. Sacheverel,
Serj. Maynard, Mr. Geo. Pelham,
Sir Fra. Winnington, Mr. Paul Foley.
R. EMLYN'S PREFACE
(to the original edition.)
The following treatise being the genuine offspring of that
truly learned and worthy judge Sir Matthew Hak,{a) stands
in need of no other recommendation, than what that great
and good name will always carry along with it.
Whoever is in the least acquainted with the extensive
learning, the solid judgment, the indefatigable labours, and
above all the unshaken integrity of the author, cannot but
highly esteem whatever comes from so valuable an hand.
Being brought up to the profession of the law, he soon
grew eminent in it, discharging his duty therein with great
courage and faithfulness; and tho he lived in critical times,
when disputes ran so high between king and parliament^ as
at last broke out into a civil war, yet he engaged in no
party, but carried himself with such moderation and even-
ness of temper, as made him loved and courted by all.
It was this great and universal esteem he was then in,
that made Cromwel so desirous to have him for one of his
judges; which offer he would willingly have declined.
Being prest by Cromwel to give his reason, he at last
plainly told him, that he was not satisfied with the lawful-
ness of his authority, and therefore scrupled the accepting
(a) He was born at Alderley, in Gloucestershire, Nov. 1, 1609.
Was entered at Magdalen- Hall, in Oxford, in the 17th year of his age.
Admitted oi" Lincoln' s-Inn, Nov. 8, 1629,
» Made a judge of the court of Common Pleas, 1653.
Lord Chief Baron of the Court of Exchequer, Nov. 7, 1660.
And at last Lord Chief Justice of the court of King's Bench, May 18,
1671.
Which place he resigned Feb. 20, 1675-6.
And died the Christmas following, Dec. 25, 1676.
vi MR. EMLYN'S
any commission under it; to which Cromwel rephed, that
since he had got the possession of the government, he was
resolved to keep it, and would not be argued out of it ; that
however it was his desire to rule according to the laws of
the land, for which purpose he had pitched upon him as
a person proper to hQ employed in the administration of
justice; yet if they would not permit him to govern by red
gowns, he was resolved to govern by red coats.
Upon t*his consideration, as also of the necessity there at
all times is, that justice and property should be preserved,
he was prevailed with to accept of a judge's place in the
court of common-pleas, wherein he behaved with great
impartiality, constantly avoiding the being concerned in
any state-affairs ; and tho for the first two or three circuits
he sat indifferently on the plea-side, or the crown-side, yet
afterwards he absolutely refused to sit on the crown-side,
thinking it the safer course in so dubious a case.
But notwitstanding his dislike to CromweVs government,
yet this did not drive him, as it did some others, into the
extremes of the contrary party; for upon the restoration, of
which he was no inconsiderable promoter, he was not for
making a surrender of all, and receiving the king without
any restrictions; on the contrary, he thought this an oppor-
tunity not to be lost for limiting the prerogative, and cutting
off some useless branches, that served only as instruments
of oppression; for which purpose he moved, as bishop Bur-
net relates,(Z>) "That a committee might be appointed to
look into the propositions that had been made, and the con-
cessions that had been offered by the late king, and from
thence to digest such propositions, as they should think fit
to be sent over to the king."
This motion was seconded, and tho through general
Monk's means it failed of success, yet it shewed our author's
tender regard for the liberties of the subject, and that he was
far from being of a mind with those, who looked on every
branch of the prerogative ^■s,jure divino and indefeasible.
But notwithstanding this attempt, which shewed he was
not cut out for such compliances as usually render a man
acceptable to a court, yet such was his unblemished charac- .
ter, that it was thought an honour to his majesty's govern-
ment to advance him first to the station of Lord Chief
{h) Burnet's Hist, of own. Times, Vol. I. p. 88.
PREFACE. vii
Baron, and afterwards to that of Lord Chief Justice of the
king's bench; nor indeed could so great a trust be lodged
in better hands.
When he was first promoted, the Lord Chancellor Cla-
rendon, upon delivering to him his commission, told him,
among other things, " That if the king could have found out
an honester or fitter man for that employment, he had not
advanced him to it, and that he had therefore preferred him,
because he knew none that deserved so well. "(c)
He behaved in each of these places with such uncorrupt
integrity, such impartial justice, such diligence, candor, and
affability, as justly drew the chief practice after him, whith-
ersoever he went; he constantly shunned not only the being
corrupt, but every thing w^hich had any appearance, or
might afford the least suspicion of it ; he was sincerely bent
on discovering the truth and merits of a cause, and w^ould
therefore bear with the meanest counsel, supply the defects
of the pleader, and never take it amiss, when summino- up
the evidence to be reminded of any circumstance he had
omitted ; for being in a high degree possessed of that qualifi-
cation so peculiarly necessary to a judge, I mean patience
(without which the most excellent talents may become insicr-
nificant) no considerations of his own convenience could
prevail with him to hurry over a cause, or dispatch it with-
out a thorough examination ; for wdiich reason he made it a
rule, especially upon the circuits, to be short and sparing at
meals, that he might not either by a full stomach unfit him-
self for the due discharge of his office, or by a profuse w-aste
of time, be obliged to put off", or precipitate the business that
came before him.[l]
(c) Burnet's life oi: Hale, Edit. 1682. p. 53.
[1] Lord Hale wrote the following rules for his judicial guidance:
Things necessary to be continually had in remembrance.
I. That in the administration of justice I am entrusted for God, the kinn^
and country ; and therefore,
IT. That it be done, 1st, uprightly; 2dly, deliberately; 3dly, resolutely.
III. That I rest not upon my own understanding or strength, but implore
and rest upon the direction and strength of God.
n . That in the execution of justice I carefully lay aside my own passions,
and do not give way to them, however provoked.
V. That I be wholly intent upon the business I am about, remitting all
Other cares and thoughts as unseasonable, and interruptions.
viii MR. EMLYN'S
He was a great lamenter of the divisions and animosities
which raged so fiercely at that time among us, especially
about the smaller matters of external ceremonies, which he
feared might in the end subvert the fundamentals of all reli-
gion: and tho he thought the principles of the non-conform-
ists too narrow and strait-laced, yet he could by no means
approve the penal laws which were then made against them ;
he knew many of them to be sober, peaceable men, who
were well affected to the government, and had shewn as
much dislike as any to the late usurpation, and therefore he
thought they deserved a better treatment ; besides, he looked
on it as an infringement on the rights of conscience, which
ought always to be held sacred and inviolable, and therefore
used to say, that the only way to heal our breaches was
a new act of uniformity; for which purpose he concurred
with Lord Keeper Bridgman and Bishop Wilkins, in setting
on foot a scheme for the comprehension of the more mode-
rate dissenters, and an indulgence towards others, and drew
the same up into the form of a bill, altho by a vote of the
house of commons it was prevented from being laid before
the parliament.
VI. That I suffer not myself to be prepossessed with any judgment at all,
till the whole business, and both parties be heard.
VII. That I never engage myself in the beginning of a cause, but reserve
myself unprejudiced till the whole be heard.
VIII. That in business capital, though my nature prompt me to pity, yet
to consider that there is also a pity due to the country.
IX. That I be not too rigid in matters purely conscientious, where all the
harm is diversity of judgment.
X. That I be not biassed with compassion to the poor or favor to the rich,
in point of justice.
XI. That popular or court applause, or distaste, have no influence upon
any thing I do in point of distribution of justice.
XII. Not to be solicitous what men will say or think, so long as I keep
myself exactly according to the rules of justice.
XIII. If in criminals it be a measuring cast, to incline to mercy and
acquittal.
XIV. In criminals that consist merely in words when no more harm
ensues, moderation is no injustice.
XV. In criminals of blood, if the fact be evident, severity is justice.
XVI. To abhor all private solicitations, of what kind soever, and by
whomsoever, in matters depending.
XVII. To charge my servants; 1st, not to interpose in any business
whatsoever; 2d, not to take more than their known fees; 3d, not to give
any undue precedence to causes ; 4th, not to recommend counsel.
XVIII. To be short and sparing at meals, that I may be fitter for
business.
PREFACE. ix
Tho by this means he was hindered from obtaining a re-
peal of those laws, yet could he never be brought to give any
countenance to the execution of them, I have heard it cre-
dibly related, that once when he was upon the circuit, there
happened to be a grand jury, who thought to make a merit
of presenting a worthy peaceable non-conformist, that lived
in their neighbourhood ; upon this occasion our judge could
not avoid reprimanding them for their ill-placed zeal, which
vented itself this way, while no notice was taken of the
prophaneness, drunkenness and other immoralities, which
abounded daily amongst them ; in short, he told them, that
if they were resolved to persist, he would remove the affair
to Westminster- Hail, and if he could not then prevail to have
a stop put to it, he would resign his place ; for he had told
the king, when he first accepted it, that if any thing 'w^as
pressed upon him, which was against his judgment, he
would quit his post.
He always retained a serious impression of religion, and
in particular was a punctual observer of any vow or engage-
ment he had laid himself under. Having in his younger
days on a particular occasion made a vow never to drink an
health again, he could never be prevailed on upon any con-
sideration to dispense with it, altho drinking healths was
then grown to be the fashionable loyalty of the times.
And thus in every character of life he was a pattern well
worthy of imitation : in short, he was a public blessing to the
age he lived in, and not to that only, but by his bright and
amiable example to succeeding generations; for as a pattern
of virtue and goodness will always be a silent, tho sharp
reproof to those who deviate from it, so to noble and generous
minds it will not fail of being a mighty spur and incentive
to the imitation of it, and by that means leave a real and
lasting, tho secret, influence, behind it.
As he justly merited the esteem of all, so in particular he
has well deserved of the profession of the law, to which he
was so shining an ornament; he contributed more by his
example to the removal of the vulf^r prejudices against
them, than any argument whatever could do.
The great Archbishop Usher had entertained >some preju-
dices of th-at kind, but by conversation with our author and
the learned Selde?i, he was convinced of his mistake; our
author declaring, " That by his acquaintance with them, he
believed there was as many honest men among the lawyers
X MR. EMLYN'S
proportion ably, as among any profession of men in E7ig'
landy
Never was the old monkish maxim, Bonus Jurista malus
Christa, more thoroughly confuted, than by his example.
He demonstrated by a living argument, how practicable it
was to be both an able lawyer and a good christian; indeed
he saw nothing in the one that was any way incompatible
with the other, nor did he think, that an unaffected piety sat
with an ill grace on any, be his station never so high, or his
learning never so great ; for tho he diligently applied him-
self to the business of his profession, yet would he never
suffer it so to engross his time as to leave no room for mat-
ters of a more serious concernment, as may appear from the
many tracts he has wrote on moral and religious subjects.
Fir this reason, when he found the decays of nature gain-
ing ground upon him, he could no longer be prevailed with
to suspend the resolution he had taken to resign his place;
that after the example of that great emperor Charles V. he
might have an interstice between the business of life and
the hour of death.((i)
No wonder then that one so great, so good, should be
loved and esteemed while living, should be revered and
admired when dead; no wonder the king should be loth
to part with him, who had been such a credit to his govern-
ment; tho had he held his place some few years longer,
such a scene of affairs did then open, as in all likelihood
would have greatly distressed him how to behave, as well
as the court how to get rid of one, who could not have been
removed without great reproach, nor continued without great
obstruction to the violent measures that were then pursued.
But it is time to stop, for I mean not to write the history
of his life; this would require a volume of itself, and is long
ago performed by an able hand;(e) I shall therefore only
subjoin his character, as drawn by that learned prelate, and
other eminent co temporaries, by which it will appear, that
future times cannot outgo his own in the veneration and
esteem they bore him,#
The bishop expresses it in short thus : " That he was one
of the greatest patterns this age has afforded, whether in his
private deportment as a christian, or in his public employ-
(d) Inter vitcB negotia <^ mortis diem oportere spatium intercedere.
Strada de hello Belgico, Vol. I. sub anno 1555.
(e) Bp. Burnet.
PREFACE. xi
merits, either at the bar or on the bench ;"(y) having given
it more at large(^) in the words of a noble person, whom
he styles one of the greatest men of the profession of the
law:(/i) "he would never be brought to discourse of pubHc
matters in private conversation; but in questions of law,
w^ien any young lawyer put a case to him, he was very
communicative, especially while he was at the bar: but
when he came to the bench, he grew more reserved, and
would never suffer his opinion in any case to be known, till
he was obliged to declare it judicially; and he concealed his
opinion in great cases so carefully, that the rest of the judges
in the same court could never perceive it: his reason was,
because every judge ought to give sentence according to his own
persuasio7i and conscience, and not to he swayed hy any respect
or deference to another man's opinion : and by this means it
happened sometimes, that when all the barons of the Ex-
chequer had delivered their opinions, and agreed in their
reasons and arguments, yet he coming to speak last, and
differing in judgment from them, hath expressed himself
with so much weight and solidity, that the barons have
immediately retracted their votes, and concurred with him.
He hath sat as a judge in all the courts of law, and in, two
of them as chief; but still wherever he sat, all business of
consequence followed him, and no man was content to sit
down by the judgment of any court, till the case was brought
before him, to see whether he were of the same mind; and
his opinion being once known, men did readily acquiesce
in it; and it was very rarely seen, that any man attempted
to bring it about again ; and he thM did so, did it upon great
disadvantages, and was always looked upon as a very con-
tentious person; so that what Cicero says of Brutus, did
very often happen to him, Etiam quos contra statuit, cequos
placatosque dimisit.
" Nor did men reverence his judgment and opinion in
courts of law only; but his authority was as great in courts
of equity, and the same respect and submission was paid
him there too; and this appeared not only in his own court
of equity in the Exchequer chamber, but in the Chancery
too, for thither he was often called to advise and assist the
lord chancellor, or lord keeper for the time being; and if the
(/) P- 218. {g) p, 172.
(/») Supposed to be the then earl of Nottingham.
xii MR. EMLYN'S
cause were of difficult examination, or intricated and en-
tangled with variety of settlements, no msm ever shewed a
more clear and discerning judgment; if it were of great
value, and great persons interested in it, no man shewed
greater courage and integrity in laying aside all respect of
persons. When he came to deliver his opinion, he always
put his discourse into such a method, that one part of it
gave light to the other ; and where the proceedings of Chan-
cery might prove inconvenient to the subject, he never
spared to observe and reprove them : And from his observa-
tions and discourses, the Chancery hath taken occasion to
establish many of those rules by which it governs itself at
this day.
" He did look upon equity as a part of the common law,
and one of the grounds of it ; and therefore, as near as he
could, he did always reduce it to certain rules and princi-
ples, that men might study it as a science, and not think
the administration of it had any thing arbitrary in it. Thus
eminent was this man in every station, and into what course
soever he was called, he quickly made it appear, that he
deserved the chief seat there.
" As great a lawyer as he was, he would never suffer the
strictness of law to prevail against conscience ; as great a
chancellor as he was, he would make use of all the niceties
and subtilties in law, when it tended to support right and
equity. But nothing was more admirable in him, than his
patience : he did not affect the reputation of quickness and
dispatch, by a hasty and ,^captious hearing of the counsel :
he would bear with the meanest, and gave every man his full
scope, thinking it much better to lose time than patience :
in summing up of an evidence to a jury, he would always
require the bar to interrupt him if he did mistake, and to
put him in mind of it, if he did forget the least circum-
stance : some judges have been disturbed at this as a rude-
ness, which he always looked upon as a service and respect
done to him.
" His whole life was nothing else but a continual course
of labour and industry, and when he could borrow any time
from the public service, it was wholly employed either in
philosophical or divine meditations: and even that was a
public service too, as it hath proved; for they have occa-
sioned his writing of such treatises as are become the choicest
entertainment ojf wise and good men, and the world hath
PREFACE. xiii
reason to wish that more of them were printed. He that
considers the active part of his Ufa, and with what unwea-
ried diligence and appUcation of mind he dispatched all
mens business which came under his care, will wonder how
he could find any time for contemplation : he that considers
again the various studies he past thro, and the many collec-
tions and observations he hath made, may as justly wonder
how he could find any time for action : but no man can won-
der at the exemplary piety and innocence of such a life so
spent as this was, wherein as he was careful to avoid every
idle word, so it was manifest he never spent an idle day.
They who came far short of this great man, will be apt
enough to think that this is a panegyric, which indeed is a
history, and but a little part of that history which was with
great truth to be related of him. Men who despair of attain-
ing such perfection, are not willing to believe that any man.
else did ever arrive at such a height.
" He was the greatest lawyer of the age, and might have
had what practice he pleased ; but tho he did most conscien-
tiously affect the labours of his profession, yet at the same
time he despised the gain of it ; and of those profits which
he would allow himself to receive, he always set apart a
tenth penny for the poor, which he ever dispensed with that
secresy, that they who were relieved, seldom or never knew
their benefactor. He took more pains to avoid the honours
and preferments of the gown, than others do to compass
them. His modesty was beyond all example; for where
some men who never attained to half his knowledge, have
been puffed up with a high conceit of themselves, and have
affected all occasions of raising their own esteem- by depre-
ciating other men, he on the contrary was the most obliging
man that ever practised. If a young gentleman happened to
be retained to argue a point in law, where he was on the
contrary side, he would very often mend the objections when
he came to repeat them, and always commend the gentle-
man, if there were room for it ; and one good word of his was
of more advantage to a young man, than all the favour of
the court could be. [2]
[2] Williams, in his life of Hale, gives the following account of his intro-
duction to a student of law, taken from a manuscript formerly in the posses-
sion of Bennet Langton, the friend of Dr. Johnson, and found in the hand-
writing of Mr. Langton's great grandfather, who studied law with Lord Hale :
" Dec. 13, 1672. — I was sent to by Mr. Barker, to come to him to my
Lord Chief Justice Hale's lodgings, at Sergeant's Inn. I was informed by
xiv MR. EMLYN'S
Upon the promotion of lord chief i\is,iice Rainsford, who
sncceeded him in that office, the then lord chancellor exprest
himself thus :{i) " The vacancy of the seat of the chief jus-
(i) Burnet, p. 213, 217.
Mr. Godolphin, about a month ago, that my Lord Chief Justice had decljared,
at supper, at Mr. Justice Twisden's, that if he could meet with a sober young
man, that would entirely addict himself to his lordship's directions, he would
take delight to communicate to him, and discourse with him at meals, and
at leisure times ; and, in three year's time, make him perfect in the practice
of the law. I discoursed several times with Mr. Godolphin, of the great advan-
tage that a student would make by his lordship's learned communications, and
what influence it would have on a practiser, as well as honour, to be regarded
as my lord's friend ; and persuaded him to use his interest, and the offers of
his friends, to procure his lordship's favour. But his inclinations leading
him to travel, and his design afterwards, to rely upon his interest at court,
he had no thoughts to pursue it, but offered to engage friends on my behalf,
which I refused, and told him, I would make use of no other person than my
worthy friend, Mr. Barker, whose acquaintance with my lord, I knew, was
very particular. After I had often reflected upon the nobleness of my lord's
proposition, and the happiness of that person that should be preferred by so
learned and pious a man, to whose opinion every court paid such a venera-
tion that he was regarded as the oracle of the law, I made my application to
Mr. Barker to intercede with my lord in my behalf, who assented to it with
much readiness, as he always had been very obliging to me since I had the
honour to be known to him. He made a visit to my lord, and told him that
he heard of the declaration my lord made at Mr. Justice Twisden's. My
lord said it was true, and he had entertained the same resolution a long
time; but, not having met with any body to his purpose^ he had discarded
those thoughts, which Mr. B. did beg of his lordship to resume, in behalf of
a person that he would recommend to him, and would be surety for his
industry, and diligent observation of his lordship's directions. My lord then
inquired who it was, and he mentioned me. Then he asked how long I had
been at the law, of what country I was, and what estate I had ; which he
told him, and that I was my father's eldest son. To which he replied, that
he might talk no farther of it, for there was no likelihood that I would attend
to the study of the law as I ought. But Mr. B. gave him assurances that I
would ; that his lordship might rely upon his word ; and that I had not taken
this resolution without deliberation ; that I had often been at Westminster
Hall, where I had heard his lordship speak, and had a very great veneration
for his lordship, and did earnestly desire this favour; that my father had
lately purchased the seat of the family, which was sold by the elder house,
and by that means had run himself into five or six thousand pounds debt.
" ' Well then,' said my lord, ' pray bring him to me.'
" Dec. 13. — I went to my lord and Mr. B. (for till that time my lord was
either busy or out of town) about four in the afternoon. My lord prayed us
to sit, and after some silence, Mr. B. acquainted my lord, that I was the per-
son on whose behalf he had spoken to his lordship. My lord then said, that
he understood I had a fortune, and, therefore, would not so strictly engage
myself in the crabbed study of the law, as was necessary for one that must
PREFACE. XV
tice of this court, and that by a way and means so unusual,
as the resignation of him, that lately held it, and this too
proceeding from so deplorable a cause as the infirmity of
that body, which began to forsake the ablest mind that ever
make his dependence on it. I told his lordship, that if he pleased to admit
me to that favor I heard he designed to such a person he had inquired after,
that I should be very studious. My lord replied quick, that Mr. B. had given
him assurances of it ; that Mr. B. was his worthy friend, with whom he had
been acquainted a long time, and that, for his sake, he should be ready to do
me any kindness; for which I humbly gave his lordship thanks, as did, like-
wise, Mr. B. My lord asked me, how I had passed my time, and what
standing I was of. I told him that I was almost six years of the Temple ;
that I had travelled into France about two years ago, since when I had dis-
continued my studies of the law, applying myself to the reading French
books, and some histories. My lord discoursed of the necessity of a firm,
uninterrupted prosecution of that study which any man designed, in the
midst of which Mr, Justice Twisden came in, so that his lordship bid us come
to him again in two hours after.
" About eight the same evening, we found his lordship alone. After we
sat down, my lord bid me tell him, what I read in Oxford, what here, and
what in France. I told him I read Smith's Logic, Burgersdicius' Natural
Philosophy, Metaphysics, and Moral Philosophy ; that in the afternoons I
used to read the classic authors ; that, at my first coming to the inns of
court, I read Lyttleton, and Doctor and Student, Perkins, my Lord Coke's
Institutes, and some cases in his Reports; that after I went into France, I
applied myself to the learning of the language, and reading some French
memoirs, as the Life of Mazarin, Memoirs of the D. of Guise, the Hii^-
tory of the Academic Francoise, and others; that since I came away, I con-
tinued to read some French books, as the History of the Turkish government
by , the account of the last Dutch war, the State of Holland, &c. ;
that [read a great deal in Heylin's Geography, some of Sir Walter Rawleigh,
my Lord Bacon of the Advancement of Learning, Tully's Offices, Rush-
worth's Collections.
" My lord said, that the study of the law was to one of two ends ; first, to
fit a man with so much knowledge as will enable him to understand his own
estate, and live in some repute among his neighbours in the country ; or
secondly, to design the practice of it as an employment to be advantaged by
it ; and asked which of them was my purpose. I acquainted his lordship,
that when I first came to the temple I did not design to prosecute the study
of the law, so as to make advantage by it ; but now, by the advice of my
father and my uncle, and Dr. Peirse, in whose college I had my education,
and received many instances of his great kindness to me, I had formed reso-
lutions to practise it, and, therefore, made my suit to his lordship, for his
directions.
'* ' Well,' said my Lord, * since I see your intentions, I will give what
assistance I can.'
" My lord said, that there were two ways of applying one's-self to the
study of the law ; one was to attain the great learning and knowledge of it,
which was to be had in all the old books, but that did require great time, and
xvi MR. EMLYN'S
presided here, hath filled the kingdom with lamentations,
and given the king many and pensive thoughts how to sup-
ply that vacancy again." And then addressing himself to
his successor: "The very labours of the place, and that
would be at least seven years before a man would be fit to make any benefit
by it ; the other was, by fitting one's-self for the practice of the court, by
reading the new reports, and the present constitution of the law ; and, to this
latter my lord advised me, having already passed so much time, a great
many of the cases seldom coming in practice, and several of them anti-
quated.
" In order tp which study, his lordship did direct -that I should be very
exact in Lyttleton, and after, read carefully my lord Coke's Lyttleton, and
then his Reports. After which Plowden, Dyer, Croke and Moore. That I
should keep constantly to the exercises of the house, and, in term, to West-
minster Hall, to the King's Bench, because the young lawyers began their
practice there ; that I should associate with studious persons, rather above,
than below my standing ; and, after next term, get me a common place
book, and that I must spoil one book, binding Rolle's Abr. with white paper
between the leaves, and according to those titles insert what I did not find
there before, according to the preface to that book, which my lord said came
from his hands, and that he did obtain of Sir Francis RoUe to suffer it to be
printed, to be a platform to the young students. My lord said that he would,
at any time that I should come to him, shew me the method he used, and
direct me, and that if he were busy he would (ell me so.
"He said that he studied sixteen hours a day, for the first two years that
he came to the inns of court, but almost brought himself to his grave, though
he were of a very strong constitution, and afterwards reduced himself to
eight hours; but that he would not advise anybody to so much ; that he
thought six hours a day, with attention and constancy, was sufficient ; that
a man must use his body as he would use his horse, and his stomach — not
tire him at once, but rise with an appetite. That his father did order in his
will that he should follow the law; that he came from the university with
some aversion for lawyers, and thought them a barbarous sort of people,
unfit for any thing but their own trade; but having occasion to speak about
business with Serjeant Glanvil, he found him of such prudence and candour,
that from that time he altered his apprehensions, and betook himself to the
study of the law, and oft told Serjeant Glanvil that he was the cause of his
application to the law.
" That constantly, after meals, every one in his turn, proposed a case,
in which every one argued.
" That he took up a resolution, which he punctually observed ever since,
that he would never more see a play, having spent all his money at Oxford,
and having experienced that it was so great an alienation of his mind from
his studies, by the recurring of the speeches and actions into his thoughts, a^
well as the loss of his time when he saw them; that he had often had dis-
putes with Mr. Selden, who was his great friend, and used to say he found so
great refreshment by it; but my lord told him, he had so much knowledge
of the inconvenience of them, that he would not see one for a hundred
pounds. But he said he was not one of Mr. Prynne's judgment (which I
PREFACE. xvii
weight and fatigue of business, wliicli attends it, are no
small discouragements; for what shoulders may not justly
fear that burden, which made* him stoop, that went before
you? Yet I confess you have a greater discouragement
than the mere burden of your place, and that is the unimi-
table example of your predecessor. Onerosum est succedere
bono principi vfdi^ the saying of him in the panegyric, and
you will find it so too, that are to succeed such a chief jus-
tice, of so indefatigable an industry, so invincible a patience,
so exemplary an integrity, and so magnanimous a contempt
of worldly things, without which no man can be truly great;
minded him of,) for he did not think it unlawful, but very fit for gentlemen
sometimes, but not for students.
" My lord said, at the beginning of his discourse, that my friends might
expect that I should marry, to take off the present debt from the estate,
which else would increase, and then there could be no thoughts of a very
earnest prosecution of study ; to which Mr. B. said, that my father, when
he made this purchase that put him into debt, did resolve to sell other land,
and by that might either discharge, or lessen it.
" My lord said that his rule of health was, to be temperate, and keep him-
self warm. He never made breakfasts, but used, in the morning, to drink a
glass of some sort of ale. That he went to bed at nine, and rose between
six and seven, allowing himself a good refreshment for sleep. That the law
will admit of no rival, nothing to go even with it ; but that sometimes one
may, for diversion, read in the Latin historians of England, Hoveden, and
Matthew Paris, &:c. ; but after it is conquered, it. will admit of other studies.
" 1 asked whether his lordship read the same law in the afternoon, as he
did in the morning. He said no : he read the old books in the morning, and
the new in the afternoon, because of fitting himself for conversation. I asked
if he kept constantly to one court, which he said he did.
" He said, a little law, a good tongue, and a good memory, would fit a
man for the chancery ; and he said it was a golden practice, for the lawyers
there got more money than in all the other courts of Westminster Hall. I
told his lordship what my lord chancellor lately said, that he would reduce
the practice of the court to another method, and not suffer above one counsel,
or two at the most, in one cause.
" My lord said, that lOOOZ. a year was a great deal for any common law-
yer to get ; and Mr. B. said that Mr. Winnington did make 2000Z. per year
by it. My lord answered, that Mr. W. made great advantage by his city
practice, but did not believe he made so much of it. I told his lordship of
what Mr. W. had said before the counsel on Wednesday, on the behalf of
stage coaches, which were then attempted to be overthrown.
" At our coming away, my lord did reiterate his willingness to direct and
assist me ; and I did beg of his lordship, that he would permit me to consult
his lordship in the reason of any thing that I was ignorant of; and that his
lordship would be pleased to examine me in what I should read, that he
might find in what measure I did apply myself to the execution of his com-
mands."
VOL. I. — B
xviii MR. EMLYN'S
and to all this a man that was so absolute a master of the
science of the law, and even of the most.abstruse and hidden
parts of it, that one may truly say of his knowledge of the
law, what St. Austin said of St. Hierom's knowledge in di-
vinity. Quod Hieromjmus nescivit, nullus mortalium unquam
scivit. And therefore the king would not suffer himself to
part with so great a man, till he had placed upon him all the
marks of bounty and esteem, which his retired and weak
condition was capable of."
To this the new chief justice, speaking of his predecessor,
answered in the following words.
*' A person in whom his eminent virtues and
deep learning have long managed a contest for the superior-
ity, which is not decided to this day, nor will it ever be
determined, I suppose, which shall get the upper hand: A
person that has sat in this court many years, of whose actions
there I have been an eye and ear witness; that by the
greatness of his learning always charmed his auditors to
reverence and attention : A person of whom I think I may
boldly say, that as former times cannot show any superior
to him, so I am confident succeeding and future time will
never shew any equal. These considerations, heightened
by w'hat I have heard from your lordship concerning him,
made me anxious and doubtful, and put me to a stand how
I should succeed so able, so good, and so great a man. It
doth very much trouble me, that I, who, in comparison of
him, am but like a candle lighted in the sun-shine, or like a
glow-worm at mid-day, should succeed so great a person,
that is and will be so eminently famous to all posterity; and
I must ever wear this motto in my breast to comfort me, and
in my actions to excuse me,
" Sequitur, quamvis non passibits cBquis^
Mr. Baxter, with whom our author was very intimate
towards the latter part of his life, describes him in these
words :(^) *'Sir Matthe?v Hale, that unwearied student, that
prudent man, that solid philosopher, that famous lawyer,
that pillar and basis of justice, who would not have done an
unjust act for any worldly price or motive, the ornament of
his majesty's government" and honour of England, the
highest faculty of the soul of Westminster-Hall, and pattern
to all the reverend and honourable judges; that godly serious
{h) Baxter's Notes on Lord Hale's Life, p. 43.
PREFACE. xLx
practical christian, the lover of goodness and all good men,
a lamenter of the clergies selfishness and unfaithfulness
and discord and of the sad divisions following hereupon ;
an earnest desirer of their reformation, concord and the
church's peace, and of a reformed act of uniformity, as
the best and necessary means thereto; that great con-
temner of the riches, pomp and vanity of the world; that
pattern of honest plainness and humility, who while he fled
from the honour that pursued him, was yet lord chief justice
of the king's bench, after being long lord chief baron of the
Exchequer; living and dying, entring on, using, and volun-
tarily surrendering his place of judicature with the most
universal love, honour and praise, that ever did Efiglish sub-
ject in this age, or any that just history doth acquaint us
with," <^c. 6fC. SfC.
Thus far for the author.
As to the work itself, if any of our author's performances
might challenge the precedence of the rest, this seems to
have the justest claim to it, as being a favourite work, which
he often reviewed, and was at vast pains and charge in fur-
nishing himself with proper materials for it.
His compassionate concern for the lives and liberties of
mankind on the one hand, and for preserving the public
peace and tranquility on the other, had possessed him with
an opinion of the high importance, that the pleas of the
crown, especially those relating to capital offenses, should
be reduced to certain rules, and those rules clearly and
plainly understood, that so there might be as little room left
as possible either for erring in, or perverting of judgment.
It was this led him to make the crown law his principal
study, to which he applied himself with great assiduity ; for
as bishop Burnet speaking of this treatise informs us,(/) " It
was by much search and long observation he composed that
great work concerning it." The same author acquaints us,{m)
that he had begun his collections relating hereto in the
reign of King Charles I. "But after the king was murdered
he laid them by; and that they might not fall into ill hands,
he hid them behind the wainscotting of his study, for he
said, there rvas no rtiore occasion to use them, till the king
should he again restored to his right; and so upon his ma-
j6sty'« restoration he took them out, and went on in his
desigit to perfect that great work."
{I) p. 90. (m) p. 39.
XX MR. EMLYN'S
Hence it appears liighly probable, that he intended this
work for the pubhc, altho the business of his station did not
afford him leisure to publish it during his life; however,
about four years after his death, the house of Commons took
singular notice of it, and thought it a work of such conse-
quence, as to pass a vote,(;^) desiring his executors to print
it; and appointed a committee to take care thereof: but that
parliament being soon after dissolved, (o) this design dropt.
Some years since there was published a treatise, intitled,
Pleas of the Crown by »Sir Matthew Hale ; but this was only
a plan of this work, containing little more than the heads or
divisions thereof, concerning which the editor in his preface
expresses himself thus, " He [our author] hath written a
large work upon this subject, intitled, A?i History of the
Pleas of the Crown, wherein he shews what the law an-
ciently was in these matters, what alterations have from
time to time been made in it, and what it is at this day. He
wrote it on purpose to he pri?ited, finished it, had it all tran-
scribed for the press in his life-time, and had revised part of
it after it was transcribed."
It is therefore to be hoped, the publication hereof will not
be thought any way to interfere with the direction of his
will. That none of his MSS. should be printed after his death,
except such as he should give order for during his life, his
intention for printing it being so apparent, as may well
amount to an order for so doing.
Besides, as bishop Burnet observes,(j9) this prohibitory
clause in the will seems in some measure to be revoked by
his codicil, wherein he orders, that if amj book of his writing
should be printed, then what should be given as a consideration
for the copy should be divided, &c. a kind of implication, that
he had left the printing thereof to the discretion of his ex-
ecutors.
The above-mentioned writer further observes,(^) that his
unwillingness to have any of his works printed after his
death, preceded from an apprehension, lest they should
undergo any expurgations or interpolations in the licensing
them; for this, he said, might in matters of law prove to be of
such mischievous consequence, that he was resolved none of his
writings should be at the mercy of the licensers.
(n) iVo». 29, 1680. (o) Jan. 18, 1680.
(p) p. 185. ($) p. 186,
PREFACE. xxi
But as there is no such thing required by the laws now
in being, that reason is at an end, and the reader may be
assured, that the edition here offered to the public is printed
faithfully from the author's original manuscript.
This manuscript consists of one thick folio volume, all in
our author's own hand-writing, from whence it was tran-
scribed in his life-time, and the transcript has since been
bound up in seven small volumes in folio.
It had been by him revised as far as Chap. 27. in the first
part, viz. about the middle of the third volume, as appears
from many interlineations and additions in his own hand ;
the corrections in the remaining part are in another (very
modern) hand, and in some places not very agreeable to the
scope of the argument.
This transcript, therefore, so far as revised and corrected
by our author (and no farther), may be deemed the original
finished and perfected ; but since even in this part there are
in some places leaves taken out, and others inserted in their
room in a different hand, unauthenticated by our author,
and sometimes quite disturbing the coherence and connexion
of the discourse, it was not thought warrantable to consider
such interpolations as a part of this treatise; for as it cannot
be doubted but great regard will be always paid to the per-
formance of so esteemed an author, it is a piece of justice
due both to the author and the public, that nothing should
be herein inserted, but what is undeniably his, and carries
evident marks of being by him intended as part of this
work.
The title hereof was named by our author himself Histo-
ria Placitorwn Cornce; for he intended, as appears from the
Proemium, to have taken in the whole body of the crown-
law, as well in relation to matters civil, as matters criminal;
for which purpose he once designed to have added two more
books upon this subject, the one concerning offenses not
capital, the other touching franchises and liberties ; but to
the great detriment of the public, neither of these appears
ever to have been composed by him; so that, as it now
stands, it treats only of offenses capital, which is indeed the
most important branch of the crown-law, being what most
nearly affects the life and liberty of the subject; besides, in
treating hereof, he has unavoidably explained many inci-
dental matters equally applicable to offenses not capital.
The Jirst part of 'this work relates to the nature of the
xxii MR. EMLYN'S
offenses, viz. the several kinds of treason, lieresy and felony,
the second of these, heresy, being an offense of a spiritual
nature, of which it was not our author's purpose to treat,
w'as at first wholly omitted by him; but afterwards con-
sidering, as I suppose, that by its being circumscribed by
act of parliament, viz. 1 Uliz. it became an offense of tem-
poral cognizance, he thought proper to insert a chapter
upon that head.
The second part relates to the manner of proceeding
against offenders; wherein are considered the jurisdiction of
the several courts; the manner of apprehending, committing,
bailing, and arraigning offenders; their several pleas, bring-
ing them to trial, judgment, and execution.
Having thus given some general account of the author
and the work, it will be proper, in the next place, to acquaint
the reader with the part I have had in this addition, which
has been to supervise the printing thereof, that it be agree-
able to our author's manuscript, which being written in a
very obscure hand, might, by one wholly unacquainted
w^ith the law, have been frequently mistaken.
To make this work the more authentic, the several refer-
ences herein made to the records have been compared with
the originals at the respective offices in the Tower and West-
minster.
I have also carefully examined the several quotations from
the year-books, reports, &c. many of which being quoted
without folio or page, or else mis-quoted, have with no small
trouble been supplied and rectified ; for our author, not hav-
ing always had leisure to consult the books themselves, has
frequently copied from the mis-printed quotations in the
margin of lord CoMs third volume of his Institutes.
As it cannot be expected, but in the writing so large a
manuscript, some words must, currente calamo, have been
omitted or wrong written, I have in some few places taken
the liberty to add or alter a word or two to preserve the
sense; but have been particularly careful to distinguish
such addition or alteration within crotchets, that -I might
not impose my judgment on the reader, but leave him to
judge for himself, whether the drift of our author's reason-
ing do not require it.
I have likewise subjoined a few notes, containing some
observations from the records; as also remarking, where the
law hath been since explained by later resolutions, or altered
PREFACE. xxiii
by subsequent acts of parliament; but as these acts are some-
times very long, consisting of many clauses, the reader is
desired to use the same caution here, which is recom-
mended by our author(r) with regard to those recited in
the work itself, viz. " that he rely not barely upon the ab-
stracts thereof here given, but peruse the statutes them-
selves in the books at large."
I am sensible many slips and omissions must needs have
happened in the supervising so large a work of so critical a
nature, but hope that will plead my excuse, at least to those,
who consider the wide difference between perusing it in a
fair print and in a difficult manuscript.
(r) Part I. p. 261.
March 30, 1736.
(Q* For Table of Cases (cited in the notes,) and Table of Abbre-
viations, see the beginning of Vol. II,
A TABLE
SEVERAL CHAPTERS CONTAINED IN THE FIRST PART.
PAGE.
Chapter I. Concerning capital punishments 1
Chapter II. Concerning the several incapacities of persons,
and their exemptions from penalties by reason thereof 14
Chapter III. Touching the defect of infancy and non-age 16
Chapter IV. Concerning the defect of ideocy, madness, and
lunacy, in reference to criminal punishments 29
Chapter V. Concerning casualty and misfortune, how far it
excuseth in criminals 38
Chapter VI. Concerning ignorance, and how far it prevails to
excuse in capital crimes 42
Chapter VII. Touching incapacities or excuses by reason of
civil subjection * 43
Chapter VIII. Concerning the civil incapacities by compulsion
and fear 49
Chapter IX. Concerning the privilege by reason of necessity 52
Chapter X. Concerning the offense of high treason, the person
against whom committed, and the reason of the greatness of
the offense; and touching alligeance 58
Chapter XI. Concerning treason at the common law, and their
uncertainty 76
Chapter XII. Touching the statute of 25 E. 3. and the high
treasons therein declared 87
xxvi A TABLE OF THE SEVERAL CHAPTERS
PAGE.
Chapter XHI. Touching high treason in compassing the death
of the icing, queen, or prince 91
Chapter XIV. Concerning levying of war against the king 130
Chapter XV. Concerning treason in adhering to the king's
enemies within the knd or without 159
Chapter XVL Concerning treason in counterfeiting the great
seal, or privy seal 170
Chapter XVH. Concerning high treason in counterfeiting the
king's coin, and in the first place touching the history of the
coin and coinage of England 188
Chapter XVHI. Concerning the adulteration or impairing of
coin, and the antient means used to remedy it 205
Chapter XIX. Concerning the counterfeiting of the king's coin,
what it is, what the penalty thereof antiently, and what at
this day 210
Chapter XX. Concerning treason in bringing in false money 225
Chapter XXI. Concerning high treason in killing the chan-
cellor, &c. 230
Chapter XXII. Concerning principals and accessaries in treason 233
Chapter XXIII. Concerning forfeitures by treason 239
Chapter XXIV. Concerning declaring of treasons by parlia-
ment, and those treasons that were enacted or declared by
parliament between the 25 E. 3. and the 1 Mar. 258
Chapter XXV. Concerning treasons declared and enacted from
1 Mar. till this day, viz. 13 Car. 2. 307
Chapter XXVI. Concerning the judgments in high treason,
and the particulars relating thereunto, and to attainders 342
Chapter XXVII. Touching corruption of blood, and restitution
thereof, loss of dower, forfeiture of goods, and execution 354
Chapter XXVIII. Touching the crime of misprision of treason
and felony, &c. . 371
Chapter XXIX. Concerning petit treason 377
Chapter XXX. Concerning heresy and apostacy, and the pun-
ishment thereof 383
Chapter XXXI. Concerning homicide and first of self killing,
or felo de se 411
Chapter XXXII. Of deodands 419
Chapter XXXIII. Of homicide, and its several kinds, and first
of those considerations, that are applicable as well to murder
as to manslaughter . 424
CONTAINED IN THE FIRST PART. xxvii
PAGE.
Chapter XXXIV. Concerning commanding, counselling, or
abetting of murder or. manslaughter 435
Chapter XXXV. Concerning the death of a person unknown,
and the proceedings thereupon 447
Chapter XXXVI. Touching murder, what it is, and the kinds
thereof 449
Chapter XXXVII. Concerning murder by malice implied pre-
sumptive, or malice in law 455
Chapter XXXVIII. Of manslaughter, and particularly of man-
slaughter exempt from clergy by the statute of 1 Jac. cap. 8. 466
Chapter XXXIX. Touching involuntary homicide, and first of
chance-medley, or killing per infortunium 471
Chapter XL. Of manslaughter ex necessitate, and first se de-
fendendo H 473
Chapter LXI. Concerning the forfeiture of him that kills in
his own defense, or per infortunium 492
Chapter XLII. Concerning the taking away of the life of man
by the course of law, or in execution of justice 496
Chapter XLIII. Of larciny and its kinds 503
Chapter XLIV. Concerning the divershies of grand larcinies
among themselves in relation to clergy 517
Chapter XLV. Concerning petit larciny , 530
Chapter XLVI. Of robbery 532
Chapter XLVII. Concerning restitution of goods stolen, and
the confiscation of goods omitted in the indictment or the
appeal 538
Chapter XLVIII. Of burglary, the kinds and punishments 547
Chapter XLIX. Of arson, or wilful burning of houses 566
Chapter L. Concerning felonies by the common law, relating
to the bringing of felons to justice, and the impediments
thereof, as escape, breach of prison, and rescue; and first
touching arrests 575
Chapter LI. Of felony by voluntary escapes, and touching
felony by escapes of felons 590
Chapter LI I. Of negligent escapes 600
Chapter LIII. Concerning rescues of prisoners in custody for
felony 606
Chapter LIV. Concerning escapes and breach of prison by the
party himself, that is imprisoned for felony 607
Chapter LV. Of principals and accessaries in felony, and first
of accessaries before the fact 612
xxviii A TABLE OF THE SEVERAL CHAPTERS, &c.
PAGE.
Chapter LVL Of acqessaries after the fact 618
Chapter LVIL Concerning the order of proceeding against
accessaries 623
Chapter LVHI. Concerning felonies by act of parliament, and
first concerning rape 626
Chapter LIX. Concerning the felony de uxore abdncta sive
rapta cum bonis viri, super statutum Westm. 2. cap. 34. 637
Chapter LX. Of felony by purveyors taking victuals without
warrant - / 639
Chapter LXL Concerning the new felonies enacted in the
times of E. 2. E. 3. and R. 2. 620
Chapter LXH, Concerning the new felonies enacted in the
time of H. 4. H. 5, H. 6. E. 4. 644
Chap'sUr LXHL Concerning the new felonies enacted in the
times of R. 3. H. 7. H. 8. E. 6. and Q. Mary 656
Chapter LXIV. Concerning felonies newly enacted in the time
of Q. Elizabeth, K. James, and K. Charles L 681
Felonies enacted in the time of K. Charles H. K. James H. .
K. WilUam HL Q. Anne, K. George I. and K. George H. 697
Chapter LXV. Certain general observations concerning felo-
nies by act of parliament 703
Felonies enacted since the last edition of this book in the year
1778 725
THE PROEMIUM.
THE METHOD OF THE WORK INTENDED.
Having an intention to make a full collection of the Pleas
of the Crown, I shall divide those Pleas into two general
Tracts.
The first, concerning pleas of the crown in matters
criminal.
The second, concerning pleas of the crown in matters
civil; namely, concerning franchises and liberties.
The former will be the subject of the first and second
books, the latter of the third book.
First, therefore, I shall begin with the several kinds of
crimes, that make up the subject matter of my first and
second book.
Crimes that are punishable by the laws of England, are
for their matter of two kinds,
1. Ecclesiastical.
2. Temporal.
The former of these, namely, such crimes as I call Eccle-
siastical, are of ecclesiastical cognizance; and though all
external jurisdiction^ as well ecclesiastical as temporal, is
derived from the Crown of Engla7id, and all criminal pro-
ceedings in the ecclesiastical courts, are in some kind Pla-
cita Cor once suits for the king, and such as he may pardon
or discharge, as being his own suits, yet these I shall not
meddle with at this time.
The second sort, viz. Temporal crimes, which are offenses
against the laws of this realm, whether the common law or
acts of parliament, are divided into two general ranks or
distributions in respect of the punishments that are by law
appointed for them, or in respect of their nature or degree:
XXX THE PROEMIUM TO
and thus they may be divided into capital offenses, or
offenses only criminal; or rather, and more properly, into
■ ■ Felotiies and
Misdemeanors, "
because there is no capital offense but hath in it the crime
of felony : and yet there be some felonies, that are not in
their nature capital, whereof hereafter.
Crimen capitale, or felony, in this acceptation is of two
kinds, namely,
That which is complicated, and hath a greater offense
joined with it, namely Treason, and
That which is simple Felony.
Touching the former of these, namely Treason, it is that
capital offense, which is committed against some special
civil obligation, of subjection and faith more than is found
in other capital offenses, and therefore it hath the denomina-
tion oiproditio, and the offense is laid to be done prodilorie.
This offense of Treason is of two kinds, namely,
That which is against the highest civil obligation, namely,
against the king, his crown and dignity, which is called
High-treason.
Or against some other, to whom a civil obligation of faith
is made or implied, which is called Petit-treason.
The offenses of high-treason are of two kinds, .?;zV.
Such as were treasons by the common law, or,
Such as were made so by special acts of parliament.
The offenses of simple felony are likewise of the same
distribution, namely.
Such as were felonies at common law, and,
Such as are by act of parliament put into the degree, or
under the punishment of felony.
And the same distribution is to be made touching misde-
meanors, namely they are.
Such as are so by the common law, or
Such as are specially rpade punishable as misdemeanors
by acts of parliament.
This is the general order and distribution of the first and
second book of this tractate, namely, concerning the matters
of the Pleas of the Crown in criminals; or those crimes,
which come under the cognizance of the laws of this king-
dom, wherein the prosecution is pro rege, or in his name or
right, as the common vindex of public injuries or crimes.
The particular enumeration of these several offenses is
HISTORIA PLACITORUM CORONA. xxxi
much of the business of those charges, that are given to the
grand jury by the justices in their several sessions; and they
were for the most part heretofore contained in certain arti-
cles or heads of inquiry delivered out in writing to the
several inquests, and were often stiled Capitula Placitonim
Coronce; such were those of i^. 1. mentioned by Hovede?i,
p. 744, 783. which were delivered to the inquisitors in
every wappentach or hundred, and to the justices itinerant
to make inquiry upon, and by them to the grand inquests;
and such were those Articuli itineris declared by Bracton,
Lib. III. de corona, cap. 1. and printed in the old Magna
Charta for the justices in eyre to make inquiry upon, which
I shall not here repeat at large, but shall take them up as
I shall have occasion to use them.
The order which I shall observe in these Pleas of the
Crown will be this :
I. In the first book I will consider of capital offenses,
Treason and Felonies; which book will be divided into
two parts :
1. The enumeration of the hinds of treasons and felonies
as well by common law, as by acts of parliament.
2. The whole method of proceedings in or upon them.
II. The second book will treat of matters criminal, that are
not capital; and
III. The third book will be touching franchises and liher-
ties.{*)
(*) That which is here offered to the public, is only the first of these books,
consisting of two parts ; the other two books having, as I have been credibly
informed, never been composed by our author.
HISTOlilA PLACITORUM COW^M.
PART I.
CHAPTER I.
CONCERNING CAPITAL PUNISHMENTS.
Being to treat concerning capital offences, it will not be amiss to pre-
mise something touching capital punishments.
Laws, that are introdnced by custom, or instituted by the legislative
authority for the good of civil societies, would be of little effect, unless
they had also their sanctions, imposing penalties upon the offenders
of those laws.
These penalties are various according to the several natures of the
offences, or the detriment that comes thereby to civil societies ; some
are only pecuniary; some corporal, but not capital, such as imprison-
ment, stigmatizing, banishment, servitude, and the like; others are
capital, ultimum siippUcium, or death; and that death sometimes
accompanied with greater, sometimes with less degrees of severity.
So that, although offences against the good of human society be many
of ihem prohibited by the laws of God and nature, yet the punishments
of all such offences are not determined by the law of natiu-e to this
or that particular kind, but are for the most part, if not altogether, left
to the positive laws and constitutions of several kingdoms and states.
And therefore, although most certainly the penalties instituted by
God himself among his ancient people upon the breach of their laws
were with the highest wisdom fitted to that state, and all
lavv^s and instituted punishments should come up as near to [ 2 ]
that pattern, as may be ; yet as to the degrees and kinds of
punishments of offences in foro civiii vel judicinrio they are not
obliging to all other kingdoms or states, but all states, as well chris-
tian as heathen, have varied from them.
And therefore it will not be amiss to instance in the various kinds
of punishments inflicted by the several laws of several countries, es-
pecially in those two offences of homicide and theft, which are the
most common and obvious offences in all countries.
By th.eancientest divine law, that we read, the punishment of homi-
VOL. I. — 1
2 HISTORIA PLACITORUM CORONA.
cide was with death. Gen. ix. G. "Whosoever sheds man's blood,
by man shall his blood be slied."(^/)
And the judicial law given by Moses was pnrsnantto it, with some
temperaments and explanations. Exod. xxi. 12, 1,3, 14. "He, tliat
smiteth a man, so that he die, shall surely be put to death. And if
a man lie not in wait, but God deliver him into his hand ; then 1 will
appoint thee a place, whither he shall flee. But if a man come pre-
sumptuously upon his neighbour to slay him with guile; thou shalt
take him awa.y from mine altar, that he may die." And v. 18, 19. "And
if men strive together, and one smite another with a stone, or with
his fist, and he die not, but keepeth his bed ; if he rise again, and walk
abroad upon his staff, then shall he that smote him, be quit; only he
shall pay (pr the loss of his time, and for his cure."
And what this delivery by God of a man into his neighbour's hand
is, is best expounded Deut. xix. 4, 5, 6, 11, 12. "Whoso killeth his
neighbour ignorantly, whom he hated not in time past, as where a
man cleaveth wood, and the ax flieth from the helve, and killeth a
man, he shall fly to the city of refuge, (6) lest the avenger(c)
[ 3 ] of blood pursue, and slay him while his heart is hot; where-
as he was not worthy of death, in that he hated him not in
time past: But if any man hate his neighbour, and lie in wait for
him, and rise up against him, and smite him mortally, that he die,
and he fleeth to one of those cities, the elders of his city shall send
and fetch him thence, and deliver him into the hand of the avenger
of blood, that he may die."(rf)
Again ; Exod. xxii. 2. " If a thief be found breaking-up, and be
smitten, that lie die, there shall no blood be shed for him ; if the sun
{a) Tliis law being given to Noah, from whom all men are derived, is not peculiar to
the Israelites ; but, as our author observes below, is binding on all mankind.
{i) Concerning these cities of refuge, see Exod. xxi. 13. Numb. xxxv. Deut. iv. 41 Sf
ssg. Josh. XX. xxi. Selden : de jure natvruli, &;c. Lib. IV. cap. 2.
(c) Who this avenger of blood was, is no where expressly said, it is generally supposed
that he was the next heir to the person slain. See Selden: de jur. nat. Lib. IV. cap. 1.
6f de successionibvs in bona defuncti : but tiie truth is, the Hebrew words Gael ha dam,
here rendered the avenper of blood, should be rendered ihenext of blood, for Gael properly
signifies one of the same kindred; it is so rendered Ruth ii. 20. and iii. 9, 12. and is
usually expressed in the Septuagint by ay^Hwcvv, which denotes one near of kin.
(d) If tiiere was no avenger of blood, or if he would not or could not kill the slayer, the
slayer was capitally punished by a judicial sentence ; and no ransom or recompense was
admitted. Numb. xxxv. 31. Selden: de jur. not. Lib. IV. cap. 1. in fine; even though the
person slain should before his death desire that the slayer should be forgiven. Maimonides
More Ncvochim, Pars III. c. 41. for all voluntary homicide was inexpiable, as appears
from Numb. xv. 27. 31. and the ease of David in the matter of Uriah, Ps. li. 16. There
was one case indeed of capital homicide, wherein a ransom was allowed, viz. If an ox
were wont to push with his horn, and it had been testified to his owner, and he had not kept
liim in, so that he had killed a man or a woman, the owner was to be put to death, he
being looked on as the author of the murder, who would not prevent it, when lie had
warning, and might have done it; however, this being a case of gross negligence, rather
than wilful malice, he was permitlcd to redeem his life by paying the ransom, which
was laid upon him. Exod. xxi. 21), 30. the price of a servant was thirty shekels of
silver. Ibid. v. 32, and that of a freeman was generally double, viz. sixty shekels.
Maimon. More Neiwchim, Pars III. cap. 40.
This was also felony liy the eomtrion law of E norland, for by such sufferance the owner
scorned to have a will to kill. Stamf. P. C. 17. Filz. Cor. 311. Vide post c. 33 note.
HISTORIA PLACITORUM CORON.E. 3
be risen upon him (here shall be blood shed for him ; for he should
make full reslitulion ; if he have notliing, then he shall be sold for his
theft."
Upon these judicial laws, these things are observable ; 1. That by
these laws the killing of a man by malice forethought, or upon a sud-
den falhng out, were both iwider the same punishment of death. (e)
2. That the killing of a man by misfortune was not liable to the
punishment of death, by the sentence of the judge; but yet [ 4 ]
tile avenger of blood might kill him. before he got to the city
of refuge. (/) 3. The killing of a thief in the night was not liable to
punishment of death ; but if it were in the day-time, it was pun-
isliable with death. 4. Though there is no express law touching
killing a man in his own defence, (,§•) yet it seems the custom of the
Jeios, and the interpretation of the Jewish doctors, excused that fact
from the punishment of death. (A) 5. Tliat the usual manner of the exe-
cution of the sentence of death was stoning, and sometimes strangu-
lation.(/)
Now I will consider some of the laws of other nations in reference
to homicide; wherein though there is a great analogy in many things
between the laws of tlie Jews, and the laws of other countries; so that
a man may reasonably collect, that these judicial laws of the Jews
were taken up by other nations, as the grand exemplar of their judi-
cial laws ; yet in some things they departed from them in tlie particular
constitutions and customs of other countries.
Among the leges JUticcC collected by Mr Petit, Lib. VII, tit. 1.
these were many of the laws concerning homicide.
(e) The law was general, "That whoever smiteth a man, so that he die, shall surely
be pat to death." Exod. xxi. 12. There were indeed some e.vceptions from this general
law, but setting aside the case of a house-breaker in the night, they all related to casual
invohintary homicides; there is not one exception of a voluntary designed killing,
whether sudden or premeditated, whatever interpretations might be afterwards made by
the Jeioish Rabins, who made the commandments of God of none eftect through their
traditions, (Matt. xv. 6.) so that there is nothing in the Jewish law to countenance the
distinction made by the laws of England between murder and manslaughter; a distinc-
tion, which serves to show, that though the laws of England be mucli severer than the
other in tlie case oi theft, yet tiiey are much milder in the case of homicide.
(/) Unless he fled to the altar, which was also looked on as a place of refuo-e, it hcm(r
probable from Es.od. xxi. 13, 14. that the altar was the place of refuge before the cities
of refuge were appointed. (See Bracton of the English Law of Asylum.) See Selden: dc
jur. not. Lib. IV. cap. 2. If he did escape to the city of refuge, he was obliged to remain
there till the death of the high priest, tor the avenger of blood might kill him wherever
he found him out of the borders of the city. Numb. xxxv. 25—32. Selden: uln supra ^
de Synedriis, Lib. II. cap. 7. But after the death of the high-priest, he was at liberty to
go where he would ; for the reason hereof see Maimonides More JSevochim, Pars 111. cap.
40, and Ainsworlh on Numbers xxxv. 25.
(g) This was a case so plainly justifiable by the law of nature, that it needed no positive
law; however, the permission to kill a thief, who should be found breaking up in the
night, seems to be an express allowance of killing in one's own defence; for the reason
ot that law is manifestly founded on the principle of self preservation. Nam adversus
periculum naturalis ratio permiltit se defeiidere. Digest. Lib. 9. Tit. 2. I. 4.
(h) When done in defence of life or cliastity; because, when lost, they are irreparable,
sec Selden: de jur. riatur. Lib. IV. cap. 3. Maimon. More Nevichim, Pars III. cap. 40.
(i) Soinetiines the execution was by burning; as in the ca-e of a priest's daughter, who
had played the whore. Levit. xxi. 9. Sometimes by decollation, which was the usual
way for murder. Selden: de Synedriis, Lib. II. cap. 13. De jur. natur. Lib. IV. cap. 1.
5' HISTORIA PLACITORUM CORONiE.
Senatus Areopagiticiis jus dicifo de cgede, ant vulnere, non casn, sed
voluntate inflicto; de incendio item, & malo veneno hommis necandi
causa dato.
Thesmothetae in homicidas animadvertiinto.
Si quis hominem sciens morti duit, capital esto.
Qui alium casu fortuito necassit, in annum deportator, donee
aliquem e cognatis occisi placarit; revertitor vero peractis sacris &
lustrationibus.
Si quis imprudens in certaminibus alium necassit, aut insidiantem
aut ignotum in prselio, aut in uxore, vel matre, vel sorore, vel filia,
vel concubina, vel ea, quam infuis liberis, habet deprehensum, csedis
ergo ne exulato.
Si quis alium injuste vim inferentem incontinent! necassit, jure
csesus esto.
Si quis homicidam foro, urbis ferritorio, publicis certaminibus &
sacris Amphictyonicis abstinentem occiderit, aut mortis causam pre-
buerit, perinde ac si Atheniensem civem necassit, capital esto, &
Ephetas jus dicunto. So that by this law a man conscious to himself
of homicide might, before he was apprehended, undertake a volun-
tary exile, and during such an exile was privileged from the penalty
of homicide. (^)
Homicidas morte multanto in patria occisi terra, et abducunto, ut
lege cautum est; in eos ne sasviunto, neve pecuniam(/) exigunto.
Before judgment the kindred of the party slain that prosecuted the
manslayer might compound the otfence, and release the offender, but
after judgment once given, neither the judge nor prosecutor could
remit it.(m)
Caedis ne postulator nnquam is qui homicidam exulantem &redeun-
tem quo non licet, in jus ad magistratum rapuerit aut detulerit.
And eodeni libro tit. 5. si nox furtum faxit, si ini ali-
r 6 "1 quis occisit,JHre csesus esto, according to the Mosaical law,
and from tlience transcribed into the Jlttic laws, and from
thence by the Decemviri into the Roman laws of the twelve tables
in lotidem. ve7'bis.
Among the Romans the laws concerning homicide differed in
some things both from the Jeivs and Greeks, as appears Dii^est. Lib.
XL VIII. tit. 8. Jid legem Corueliam de sicariis ^^ venejiciis.
Qui hominem occiderit punitor non habita differentia cujus condi-
tionis hominem(/?) interemit.
Qui hominis occidendi furtive faciendi causa cum telo ambulave-
(t) This was the case of Theoclymenus in Homer Odijss. o. v. 224, 270. 4- "• UT-
(l) The Greek word aTravAv here rendered pecuniam, properly signifies a ransom.
Horn. Iliad, a., v. 13, 20, 23, !)5, for by the ancient law of Greece the punishment of honii-
cide was redeemable by the payment of a sum of money to tiie relations of the slain,
which recompense was termed uTctva or ttciviI. Homer. Iliad. 1. v. 628. ir. v. 498.
(m) That this was the meaning of the foregoing law, see Petit in lecres Atticas, Lib,
VII. tit. I. p. 500. !^ee also the Oration of Demosthenes against Aristocrates, wherein
most of the Athenian laws relating to homicide arc explained.
(n) I. 1. §. 2.
HISTORIA PLACITORUM CORONiE. 6
rif(o) qui hominem non occidit sed viilneravit ut occidat, iit homi-
cida datiiiiandiis, nam si gladium striiixerit & cum eo percusserit,
indubitate occidendi animo admissit, sed si clavi aut cuccuma in
rixa, qiiamvis ferro, percusserit, tainen non occidendi aninio lenienda
psena ejus, qui in rixa casu magis, quam voluntate, homicidium
adniisit.(/))
But if it were merely by misfortune, it was not punished. (5?)
Qui stuprum sibi vel suis per vim inferentem occidit, dimiitendus
est,(>) sed is, qui uxorem in adulterio deprehensam occidit, humi-
liore loco positus in exilium perpetuum dandus, in aliqua dignitate
positus ad tempus relegandus.(.s)
Furem nocturnum qui occiclerit, impune feret, si parcere ei sine
periculo suo non potuit;(/) wliich law, though like to that of the
Jews and Greeks, the Roman lawyers have construed, (?/)
that it is lawful to kill furem nocturnum recedentem & [| 7 1
fugientetn cum rebus, licet se non defendat telo, sed non
diurnum, nisi se defendat telo.
The punishment of homicide, unless it were merely casual, among
the Romans was deportatio in insulas & omnium bonorum adenip-
tio, sed solent hodie capite puiiiri, nisi houestiore loco positi fuerint,
ut pcenam legis sustineant; humiliores enim solent bestiis subjici;(a7)
altiores vero deportantur in insulas,(^)
Some temperaments they added in other cases of homicide, as
banishment for five years, (z) deportation, &c. but regularly the
punishment of homicide, unless in case of simple misfortune, (a) or
defence of life, (6) was death, viz. bestiis siibjicianfur.
Among the Saxons{c) the punishment of homicide was not always,
(0) /. 1. pr. ^ Cod. eod. tit. Lib. IX. tit. 16. I. 7. {p) I. 1. §. 3.
(9) I. 1. §. 3. c. g. If a man, wlio was cutting a tree, should without calling out throw
down a great hranch of it upon one who was passing by, and kill him, he was to be
acquitted, that is to say, he was not to be proceeded against criminally by the lex Cor-
nelia de sicariis; for so is the expression in l. 7, adhnjus legis coercilionem non pertinet;
but still he was liable by the lex Aquilia to make a pecuniary satisfaction for the dam-
age. Jnstit. Lib. IV. tit.3. §. 5. And tliough that law mentions only the case of killing
a slave, yet there lay an utilis actio in the case of killing a freeman. See Noodt ad Leg,
Aquil. cup. 2.
(r) L 1. §. 4. (s) I. 1. §. 5. (t) I. 9.
(m) This was not a mere construction of the Roman lawyers, but is expressly provided
by the law of the twelve tables, as appears from Digest. Lib. IX. tit. 6. ad leg. Aquil. I. 4.
§. I. Cic. pro Mtlone, cap. 3. A. Gell. Lib. 18. cap. Macrob. saturnal. Lib. 1. cap. 4. The
reason of this distinction between a night-thief and a day-thief, see in Grot, de jur. lei.
ac. pac. Lib. II. cap. 1. §. 12.
(a) Dig. Lib. XLVIII. tit. 19. de panis. I. 28. § 15.
(y) Dig. ad leg. Cornel, de sicariis 1. 16. (z) I. 4. § 1.
(a) Cod. eod. tit. I. 1.
{b) Cod. eod. tit. I. 2. Sf 3.
(c) It seems to have buen the general practice of most of the northern nations to com-
mute the punishment of the most heinous crimes for a pecuniary mulct. Lindenbroo-ii
Codex Leg. Antiq. Lib. IV. cap. 3G. Tacitus speaking of the ancient Germans, .says^it
was customary among them to punish homicide with a certain number of sheep and
oxen, out of which the relations of him that was slain received satisfaction. Tac. de
^nor. Germ. cap. 21. From hence probably our Saxon ancestors brought the custom into
Britairt.
7 HISTORIA PLACITORUM CORONiE.
nor for the most part capital; for it might be redeemed by a recom-
pense which went under the name of IVeru and ff'ere-
r 8 ] gi/(/,{d) which was a rate set down upon the head of per-
sons of several ranks; and if any of tlieni were killed, tlie
offender was to make good that rate, or fVeregild or capitis sestima-
iio, to the kindred of the party slain; or, as some think, part to the
king, part to the lord of the fee and part to the relations of the party
slain ; which if he conid not do, lie was to suffer death. (e) Vide
Spelrn. in Gloss, ad verba IVe^'a Sf- Weregild.
This custom continued long, even to the time o{ Hen. I. here in
Englatid, as appears by his laws in libro rubro, sect. ll.(/) but
shortly after grew obsolete, as being too much contradictory to the
divine law.(^) Vide Covarr. Tonio 2 Lib. 11. cap. 9. sect. 2.
{d) This Weregild or capitis cBstimatio, according' to the laws of Ethelbei-t, was
usually 100s. Lag. Ethelhert, I. 21. though in some particular cases it was more, I. 5. 6.
22. If tlie slayer escaped, the relations were to pay half the ordinary Weregild, I. 2.3.
By the laws of Ina the Weregild was different according to the rank and degree of
the person killed, of a man worth 200s. was 30s. of a man worth 600s. was 80s. of a
man worth 1200s. was 120s. Leg. Ina. I. 70. This rule admitted of some exceptions, I,
34. /. 74.
By tlie laws of Alfred, the bare attempt on the king's life was punished with death,
unless the offender redeemed it by the payment of the king's weregild: the same law
was in case a slave attempted the life of his lord, unless he redeemed it by paying his
lord's weregild. Leg. Alfred. I. 4. the weregilds were, of the same value, as under Lia.
Leg. Alfred. I. 9. /. 26.
By the league between Alfred and Guthrun, I. 2. the value of a common person was
200s. the same by the league between Edward and Guthrun in fine.
By the laws of Athelstan, whoever should attempt his lord's life, was to be put to
death, and there is no nienlion made of any ransom. Leg. Athelstan, I. 4. but at the end
of his laws, and of the Judicia Civitatis Lundoni<B, there is a particular account of the
weregilds of all orders and degrees, from the king to the peasant, for which see Wilkin''s
Leg. Angln-Sax. p. 64. p. 71. Turner'' s Anglo-Saxons,
By the laws of Ethelred, I. 5. the iveregild of a common person was increased to 25
pounds. By /. 8. Gul. Conq. apud Wilkins''s, p 221. it was twenty pounds.
By the laws of Cnute, whoever siiould lie in wait for the life of the king, or of his lord,
was to suffer death, and forfeit all he had. Leges Cnuti, I. 54. Whoever committed a
public notorious murder, was likewise to suffer death, without redemption: for in I. 61.
Ccedes publicu Sf domini proditio are reckoned amongst the scfZe/Yi inexpiubilia ; but it
should seem that common homicide was redeemable; for in /. 6. it is said, Homicides
inclincnt, vel cmendent, vel scienter in pcccatis morianiiir.
(f) The wertgild was usually divided into three parts: the first, which was called
Frith Bole, was |)aid to the king for the loss of his suli)jcct; the lord had another for the
loss of his man, which was called Man-bote, and the kin of the slain for their loss had
the third part, which was called Mag-bote. See Spelrn. life of Alfred, Book II. § 11, In
the case of killing the king, besides the weregild, which was to be paid to the king's
relations, there was also another payment called cynebot or cijnegild, to be made to the
public for the lf)ss of their king.
(/) And § 12. see Wilkin''s leges Anglo Sax. p. 244. But it appears from the same
laws, /. 71. ibid. p. 267. liiat a malicious murder, by poison or the like, was factum mor-
tifcrnm nulla niodo redimendum. Tlie genuineness of these laws is justly questioned,
for that ihey not only are in the nature of commentaries rather than laws; but also in
I. 5. Gr/gori/''s decretals are cited, which were not compiled till fifteen years after the
death of Henri/ I , however, they are allowed to be very ancient, and to contain the
usages of the Anglo-Saxons. See llickesii Dissert. Epist. p. 96.
(g) It cannot but seem strange to us at this time of day, that the wilful murder of
any one, much more of the king, should be punished only with a pecuniary mulct; to
solve this difficullv, Mr. Kapin siijjposes that this commutation was allowed only in the
case of simple homicide; or at most what is now known by the name of manslaughter,
HISTORIA PLACITORUM CORONJ^. 8
But althongh the custom of fVere^ild is ^hrogdited here in Eng-
land, and by the laws of this kingdom the punishment of
homicide is regularly death,(^) as shall hereafter be sliovvn; [ 9 ]
yet since there are in England two kinds of proceedings in
punishing of homicide, the one at the suit of the heir or wife by
appeal, [1] the other at the suit of the king by indictment, the capi-
but not in the case of a premeditated murder : See Rapin's Histnire (P AngJeterre, Vol. I.
p. 500. This notion is in itself reasonable, and seems to be favoured by /. 4. of Athel-
stan, and I. 54. of Cnute, which makes it capital barely insidinri regi tel domino, much
more to take away the life of the king or his lord; but on llie otlier hand it seems some-
what liard to suppose, that among so many laws against homicide, they should all be
levelled against casual or sudden killing only, and scarce any against wilful murder.
(h) The offender is to be hanged by the neck till he be dead ; and i:i case he was con-
victed on an appeal, the ancient usage was, that all the relations of the slain should drag
him with a long rope to the place of execution. 3 Co. Inst. 131. Flowd. 306, b. 11 Hen.
4. 12. a.
[I] Many cases of appeal are to be found in the old books, but by the 59 Geo. 3, c. 46,
it is enacted, that it shall thenceforth not be lawful for any person to sue an appeal for
treason, murder, felony, or other offence; any law or usage to tiie contrary, notwithstand-
ing. 4 Step. Coram. 385.
In 1818, 58 Geo. 3, the case of Ash ford v. Thornton, 1 B. & Al. 405, was argued and
determined in the King's Bench. I'he writ of Appeal, and the return thereto, were
annexed to the sheriff's return of tlie writ of Habeas Corpus, and will be found printed
on p. 406. The coufit in appeal will also be found on p. 407. Some curious proceedings
are recorded; thus, "The appellee being brought into court and placed at the bar, and
tiie appellant being also in court, the count was read over to him, and he was called upon
to plead. He pleaded as follows: 'Not guilty; and I am ready to defend the same by
my body.' And thereupon taking his slave off, he threw it upon the floor of the Court."
The pleadings are fully stated in the Report, in which all the facts and circumstances
are narrated and set forth, until the parties reach a general demurrer. This demurrer
was argued by the most distinguisiied special pleaders of the time. Chitty supported the
demurrer, in an elaborate and exhausting argument; and Tyndal, (then Special Pleader
under the Bar, afterwards Lord Chief Justice of the Common Pleas,) opposed him in an
argument equally elaborate and learned. Lord Ellenhorovgh, C. J., delivering the opi-
nion of the Court, said, "The general law of the land is in favour of tlie wager of battel,
and it is our duty to pronounce the law as it is, and not as we may wish it to be. What-
ever prejudices, therefore, may justly exist against this mode of trial, still, as it is the law
of the land, the court must pronounce judgment for it."
Sir Samuel Shepherd, the Attorney General, immediately introduced a Bill in Parlia-
ment, to abolish appeals of murder and wager of battel, which may be found in the 25
Vol. Statutes at Large, 59 Geo. 3. c. 46. 22d June, 1819.
It may be mentioned in connexion with this case of Thorntori's Appeal, that it was the
first occasion on which tlie late Chief Justice, Sir Nicholas Tyndal, of the Court of Com-
mon Pleas, greatly distinguished himself His very learned argument gave rise to the
Act mentioned above for abolishing that barbarous and absurd mode of trial. Land. Law
Review for Aug. 1846,^. 436. MS. Sum., Tit. Appeal of Death.*
* This reference is to a MS. interleaved copy of Holers Summary, from the library of
the late Sir William Alexander, Chief Baron of the Exchequer, furnished to the editors
by IIenrv J. Williams, Esq., of Philadelphia. Mr. East, in the Introduction to the first
edition of his I'lens of the Crown, mentions his reference to this work among other
authorities of like character — "Lord Hale's Summary, interleaved with MS. corrections
and additions. This MS. compilation, though began before, (probably by Mr. Slow, a
gentleirtan of the bar,) was put into its present form by Mr. Justice Yates, who.«e son is
now in possession of it. Copies of it were communicated to different judges, w)io have
contributed, from time to time, the fruits of their own experience. My own copy was
taken from one in the possei»sion of the late Mr. Justice. Buller. The work was bound
up in three volumes, according to which I have cited it by the description 1, 2 & 3 MS,
Sum." 1 East P. C. Introduction, p. 15, London ed. 1603.
9. HISTORIA PLACITORUM CORONiE.
tal punishment of the offender may be discharged by all parties inte-
rested, namely by the appellant by release, and by the king by his
pardon.
.And thus far touching the punishment of homicide.
Now I shall consider somewhat also of the punishment of theft^
and the various laws and usages concerning the same in several
kingdoms and states, and at different times in the same state or
kingdom.
By the Jewish law, Exod. xxii. 1, 4. "If a man steal an ox or a
sheep, and sell or kill it, he shall restore five oxen for an ox, and
four sheep for a sheep: If the theft be found in his hands alive, whe-
ther ox, ass, or sheep, he shall restore double;" and the like for other
goods ;(«■) so that there was no capital punishment in case of theft,
though it were accompanied with burglary, as breaking a house,
but men-stealers were punished with death ;(A') but it seems by the
civil constitutions of that state the punishment thereof was sometimes
enhanced, at least in some circumstances, sometimes to a seven-fold
restitution, Prov. vi. 31, and also to death, 2 Sam. xii. 5.(/)
Now as to the Attic laws : Samuel Petit de LegibiisJitticis, Lib.
VII. tit. 5. gives us an account of their laws concerning theft, in
some things differing, in some things agreeing with the Jewish
r 10 [] ]ci\vs,fu7'em cujusci/nque modi furti supplicio capitis pu-
nito. This was Dracoes law ; but it was thought too severe,
and therefore Solon corrected it;(m) Si furtum factum sit, & quod
furto perierat receperit dominus, duplione luito furtum qui fecit &
quorum ope consiiloque fecit ; decuplione vindicator, ni dominus rem
furtivam receperit, in nervo quoque habetor dies ipsos quinque toti-
demque noctes, si heliastse pronunciarint ; pronuncianto autem, cutu
de poena illius agitur.
Si lucri furtum cujus ssstimatio sit supra 50 drachmas faxit, ad un-
decim viros rapitor ; si nox furtum faxit, si im ahquis occisit, jure
caesus esto: — Manifestum hujusmodi furtum qui faxit, etiamsi vades
dederit, non noxae factae sarcitione, sed morte luito. Si quis item ex
aliqno gymnasio yestis aut lecythi aut alicujus vel minimas rei, aut
supellectiiis e gymnasio, aut ex balineo, aut e portubus,quod excedat
10 drachmarum aestimationem, furtum faxit, morte luito.
Manifesti saccularii(;i) morte luunto.
" Vecticularii(o) manifesti morte luunto.
(t) Exod. xxii. 7, 9. The reason why the restitution of an ox was more than of a
sheep is supposed by Maimonides more NiDochiin Far. III. cap. 41, to be because sheep
are more easily guarded against thieves than oxen, who feed at a greater distance one
from another.
(A) Exod. xxi. IG.
(/) This passage from the bonk of Samuel does by no means prove what it is brought
for, viz. tliat thutl was punishable with death by the Jewish law; for tiie ease there put
of taking away a poor man's lamb, was attended with violence and other aggravating
circumstances, which provoked king David to say, The mun that hath done this shall
surelij die; and some render the words, Does deserve to die; but at most it only proves
tlie vehemence oi' David's anger at the man, and not what was the law of the Israelites,
(m) Sec A. Geliium, Lib. XI. cup. 18. 4' I'lutarch, in Vila Solonis.
(n) B^xavT/cTc^i&'r, A cut-purse.
C) Tc/;^a'gy;^;a)ir, A house-breaker.
HISTORIA PLACITORUM CORON:^. 10
Plagiarii(/?) manifesti morte luunto.
In hortQS irrumpere ficosque deligere capital esto \{q) So that the
quantity of the thing stolen, the place, the season, the manner and
other circumstances heightened theft into a capital punishment, that
otherwise by Solon's laws was only pecuniary and imprison-
ment.(r)
Now as to the Roman laws: For a theft that was not
furfum man ifestum, {here is given actio in duplum; but if ['11 ~\
it \verefu?'tuni manifestum, actioin quadj'uptmn ;[s) fur-
lum antem rnanifesfum est, cum fur deprehenditur infurto.{t)
But now as to punishments among the Romans, there were these
degrees or orders: I. Capital punishments, {viz. ultimum suppli-
ciuni){ii)vfh'\c\\ were, 1. Damnatioadfurcam. 2. Plvi crematio.
3. Capitis amputatio. 4. Damnatio ad /eras. 11. Others, that
were in the next degree, were, 1. Coercilio ad metalla. 2. Depor-
tatio ad itisu/as. III. Others again of a lower allay were, 1. Reie-
gatio ad tempiis vel in perpetuum. 2. Datio in publicum opus,
3. Fustigatio.{x)
I find not among the Romans any greater punishment of theft,
than four-fold restitution(3/) unless in these cases:
1. Si quis ex metallo principis vel ex moneta sacra furatus est,
poena metalli & exilii punitor.(z)
(/)) 'AviTgJtTccf/s-c^siisc, Sive Plagiarius, is est, qui sine vi,dolomalosciens abducit homines
liberos & ingenuos, venditque pro servis, aul suppremit: vel is est, qui alienos servos
abducit sine vi, & plerumque sinfe furto, &, fugam persuadet, aut fugltivos celut. Petit,
Comment, ad Lib. VII. tit. 5, defurtis,
(9) But this was a temporary law, made in a time of dearth, when it was thought
necessary to prohibit the exportation of figs. However, prosecutions of offenders against
this law soon grew odious; from hence all malicious informers were called Sycophants.
Vide. AthencBi Deipnosophist. Lib. III. S^ Scholiast, ia Aristophanis Flutum ad »^31.
4-874.
(r) Among the Lacedamoniavs all manner of theft was permitted, as a practice which
tended to instruct their youth in the stratagems of war. A. Gel. Lib. XI. cap, 18. It
was also unpunished among the ancient Egyptians. A. Gel. ubi supra. But we learn
from Diodor. Sic. Lib. I. that it was allowed only on certain conditions, for it was pro-
vided by a law, that whoever was minded to follow the trade of thieving, should first
enter his name with the captain of the gang, and should bring in all his booty to him,
that so the right owner might know where to apply for the recovery of his goods, which
were restored to him on paying the quarter of the value,
(s) Inst. Lib. IV. tit. 6. §. 5. Diges. Lib. XLVII. tit. 2. defurtis, I. 46. §. 2. Herein
the Roman law greatly resembled the Jewish, with this difference that by the Jewish]a.\v
the punishment of fourfold was to be instead of restitution; whereas by the Roman law
the tiling stolen was recoverable over and above the j^o^na quadrupli. Dig. eod. tit. I,
54. §. 3.
(t) Dig. eod. tit. I. 2. I. 3. pr. By tjiis was meant not only if he was taken in the fact,
but^also if he was apprehended with the goods upon him before he had carried tliem to
the place, where they were to remain that night, and answers to the expression in our
law, of being taken in the mainoiivre.
(u) Dig. Lib. XLVIII. at. 19. de poenis. I. 21.
(x; Dig. eod. tit. I. 28. pr. §. 1. Z. 1 1. §. 3.
(y) So far were the Romans from inflicting capital punishments for theft, (hat on the
contrary it was expressly forbidden by Justinian, that any person should be put to death,
or sutr.T the loss of member for theft. Novel CXXXIV. cap. tilt.
(z) Dig. Lib.XLVlU. tit. 13. ad leg. Jul. peculatusj. 6. §. 2. Lib. XLVIII. tit. ld.de
pcenis I. 38.
VOL. I. — 2
11 HISTORIA PLACITORUM CORONyE.
2. Grassatores qui cum ferro aggredi & spoliare instituunt, capite
piiijinutor.(^/)
3, Famosi latrones ad bestias vel furcas damnantor. Digest, de
pcenis.{b)
If we come to the laws and customs of our own kingdom, we shall
find the punishment of theft in several ages to vary according as the
offence grew and prevailed more or less.(c)
Among the laws of king, /^Me/.v/«;i, mentioned by Bramp-
[ 12 ]] /on, /7. 849, 852, S54. Non parcatiir ulicni lalroni supra
12 unnos «5' supra \2d. quin occidatur.{d) Edmund his
successor,* prsecepit ne, infra 15 annos, vel pro latrncinio infra
12 d. occidatur, nisifugerit, vel se defcnderit : Malmsbury tells us,
that in the time of William I. theft was punished with castration,
and loss of eyes;(e) but iu the time, of Henry I. the ancient law,
which continues to this day, was t</ 5/(7^/5 in furlo vel latrocinio
deprekensus fuerit suspenderetur.{f)[2'\
(a) Dig. eod. lit. I. 28. §. 10. (b) Dig. eod. tit. I. 28. §. 15.
(c) By the laws of Ethclbert, if one man stole any thing from anotlier, he was to restore
three fold, besides a fine to the king, l. 9. If he stole any thing from the king, he was to
restore nine-fold, Z. 4. - •
By tlie laws of Ina a thief was punished with death, unless he redeemed his life capitis
esthnatione I. 12. which was COs. I. 7. but if a villain, who had been often accused,-should
be taken in a theft, he was to have a hand or foot cut off, I. 18.
By the laws o? Alfred whoever stole a mare with tiie foal, or a cow with the calf, was
to pay 40s. besides the price of the mare or' cow, I. 16. Whoever stole any thing out of
a church, was to pay the value, and a fine according to the value; and also was to have
that hand cut off, which committed the fact, I. 6. If any person committed a tlieft die
Dominico, or any other great festival, he was to pay double I, 5.
{d) By the first law o'i Athelstan it was but Qd, Wilkins leges Anglo-Sax. p. 56. but
afterwards by the laws of tiie same king, enacted at London, and thence called judicia
civilatis Lundonicc, no one was to be put to death for a theft under 12(/. Ibid. p. 65. But
in case the tliief fled, or made resistance, then he might be put to death, .tiiough it were
under that value. Ibid. p. 70. By the law of Caute theft was punished with death. Ibid,
f. 134. Z. 4. and p. 143. /. Gl.
(*) Tiiis is a mistake, for no such law is found among the laws of that king, but it is
among the later laws o'iV\ng Atlielstnn^Yide Judicia Civ, Land. Wilk. leg. Anglo. Sax. p. 10.
(e) By tiie laws of William I. it was expressly prohibited, that any should be hanged or
pot to death for any offence, but that his eyes should be pulled out, liis testicles, hands
or feet cut oiF, according to the degree of his crime, I. Ql.apud Wilkins Leg. Anglo-Sax.
p. 229. p. 218.
(/) In former times, though the punishment of theft was capital, yet the criminal
was permiUed to redeem his life by a pecuniary ransom ; but in the Dth year of Hen. I.
it was enacted, that whoever was convicted of theft (or any other felony, 3 Co. Insl.it. 53.)
should be hanged, and the liberty of redemption was entirely taken away. Wilk. leg.
Anglo-Sax. p. 3U4. This law still remains at this day ; but considering the alteration in
the value of money, the severity of it is much greater now than then, for \2d. would then
purchase as much as 40s. will now ; and yet a theft above the value of 12t/. is still liable
to the same punishment; upon whicli Sir Hen. SpeUnan justly observes, that while all
things else liave rose in their vulue and grown dearer, the life of man is become much
cheaper. SpeUn in vtrbo lariciinu?n ; irom hence that learned author takes occasion to
wish, that the ancient tenderness of life were again restored Justum certe est, ut collapsa
legis tequitas reslauretur, & ut divinte imaginis vehiculum, cpiod superiores pridem jEtates
ob gravissima crimina ncfjuaquam tollerent, levioribus hodie ex delictis non perdcrelur.
[2] This is no longer the Law of England. Mr. Welsby in his notes to 4th Blac.
Comia. Appendix A. gives the following statement of oft'ences, (now 1844,) punishable
with death.
High Treason, at Common Law.
Murder, 9 Geo. IV. c. 31. s. 3.
HISTORIA PLACITORUM CORONA. 12
And although many of the scboohxien and canonists are of opinion
that death ought not to be inflicted for theft(o-), yet the ne-
cessity of the peace and well ordering of the kingdom hath [ 13 ]
in all ages and hi almost all countries prevailed against that
opinion, and aimexed death as tlie punishment of theft, when the
offence hath grown very common and acoom|ianied with enormous
circumstances, though in some places more is left herein to the Arbi-
trinin Judicis to give the same or a more gentle sentence according
to the quality of the offence and ofiender, than is used in England^
where the laws are more determinate, and leave as little as may be
to the Jirbilriiim Judicis. See the case disputed learnedly by Co-
varruvias Tomo 2. Lib. II. cap. 9. §. 7.
This I have therefore mentioned, that it may appear, that capital
punishments are variously appointed for several offences in all king-
doms and states : and there is a necessity it should be so ; for regu-
larly the true, or at least, the principal end of punishments is to deter
men from the breach of laws, so that they may not offend, and so not
suffer at all ; and the inflicting of punishments in most cases is more
for example and to prevent evils, than to pimish. When offences
grow enormous, freqnent and dangerous to a kingdom or state, de-
structive or highly pernicious to civil societies, and to the great inse-
curity and danger of the kingdom and its inhabitants, severe punish-
ments, even death itself, is necessary to be annexed to laws in many
{g) Scntus Sentent. 4. distinct 154 qutest. 3. Sylvester in Verba furtum 3. Not only
the sclioolmen and canonists were of this opinion, but by what has been above said, it
appears likewise to have been the sense botl^of the Jew/sA and Roman laws, and tliough,
as our author says, the principal end of punishment is to deter men from offending, yet it
will not follow from thence, tliat it is lawful to deter them at any rate, and by any means;
for even obedience to just laws may be enforced by unlawful methods. Cic. Epist. 15.
ad Brutum. Est prencs modus, sicut rerum reliquarum ; and again, Lib. I. de oJHciis. Est
enim ulciscendi S^- puniendi modus. Besides, experience might teach us, that capital
punishments do not always best answer that end. See Grot, de jur. bel. &c. Lib. II. cap.
20. §. 12. n. 3.
Administering or causing to be taken poison or other destructive thing with intent to
commit murder. 1 Vict.c. 85. s. 2.
Stabbing, cutting or wounding with intent to commit murder. Id. ibid.
Causing any bodily injury dangerous to life, with intent to commit murder. Id. ibid.
Buggery. 9 Geo. IV. c. 31. s. 15.
Robbery, accompanied with stabbing, cutting or wounding of the person robbed. 1
Vict. 0.81. s. 2.
Piracy, accompanied with an assault with intent to murder any person on board of, or
belonging to the ship, or with stabbing, cutting, or wounding of such person, or willi any
act whereby the life of such person may be endangered. Id. c. 88. s. 2.
Burglary, accompanied with an assault with intent to murder, or with stabbing, cutting,
wounding, beating or striking any person being in the dwelling hous^e. Id. c. 86. s. 2.
Maliciously setting fire to a dwelling-house, any person being therein. Id. c. 89. s. 2.
Maliciously setting fire to, casting away or destroying any ship or vessel with intent to
murder any person, or whereby the life of any person shall be endangered. Id. s. 4.
Exiiibiling any false light or signal witii intent to bring any ship into danger, or
maliciously doing any thing tending to the immediate loss or destruction of a ship in dis-
tress. Id. s. 5.
Principals in the second degree, and accessories before the fact 1o the felonies above
mentioned, except the offence of buggery, (see 9 Geo. IV. c. 31. s. 31.) are alike punish-
able with death. See 9 Geo. IV. c. 31. s. 3. 1 Vict. c. 85. s. 7: c. 86. s. 6; c. 87, s. 9:
c. 83, S.4; c. 8J. s. 11.
13 HISTORIA PLACITORUM CORONA.
cases by the prudence of law-givers, though possibly beyond the sin-
gle demerit of the offence itself simply considered.
Penalties therefore regularly seem to be juris positivi, ^- nnn na-
/iira/is,as to their degrees and applications, and therefore in different
ages and states have been set higher or lower according to the exi-
gence of the state and wisdom of the law-giver. Only in the case of
murder there seems to be a justice of retaliation, if not ex
r 14 1 lege naturali, yet at least by a general divine law given to
all mankind. Gen. ix. 6. And although I do not deny but
the supreme king of the world may remit the severity of the punish-
ment, as he did to Cain, yea, and his substitutes, sovereign princes,
may also defer or remit that punishment, or make a commutation of
it upon great and weighty circumstances, yet such instances ought
to be very rare, and upon great occasions.
In other cases, the lex talionis in point of punishments seems to be
■purely juris posilivi ; and although among the Jewish laws we find
it instituted, Exod. xxi. 24, 25. "Eye for eye, tooth for tooth, hand
for hand, foot for foot, burning for burning, wound for wound, stripe
for stripe ;" yet in as much as the party injured is living and capable
of another satisfaction of his damage, (which he is not in case of
murder,) I have heard men greatly read in the Jewish lawyers and
laws afiirm, that these taliones among the Jews were converted into
pecuniary rates and estimates to the party injured, so that in penal
proceedings the rate or estimate of the loss of an eye, tooth, hand or
foot was allowed to the person injured, viz. the price of an eye for
an eye, and the price of a hand fot a liand, Ǥ'C.(/i)
CHAPTER II.
CONCERNING THE SEVERAL INCAPACITIES OP PERSONS, AND THEIR
EXEMPTIONS FROM PENALTIES BY REASON THEREOF.
Man is naturally endowed with these two great faculties, under-
standing and liberty of will, and therefore is a subject properly capa-
ble of a law properly so called, and consequently obnoxious to guilt
and punishment for the violation of that law, which id respect of
these two great faculties he hath a capacity to obey : The consent of
the will is that, which renders human actions either com-
[ 15 ] mendable or culpable ; as where there is no law, there is no
transgression, so regularly where there is no will to commit
an offence, there can be no transgression, or just reason to incur the
penalty or sanction of that law instituted for the punishment of crimes
or offences. And because the liberty or choice of the will presup-
poseth an act of the understanding to know the thing or action chosen
by the will, it follows that, where there is a total defect of the under-
standing, there is no free act of the will in the choice of things or
Qi) Maimonides More Nevocliim, Pars. III. cap. 41.
HISTORIA PLACITORUM CORONiE. 15
actions. Bat general notions or rnles are too extravagant and un-
determinate, and cannot be safely in their latitnde applied to all civil
actions; and therefore it hath been always the wisdom of states and
law-givers to prescribe limits and bounds to these general notions,
and to define what persons and actions are exempt from the severity
of the general punishments of penal laws in respect of their incapacity
or defect of wilj.
Those incapacities or defects, that the laws, especially the laws of
England, take notice of to this purpose, are of three kinds.
I. Natural.
II. Accidental.
III. Civil incapacities or defects.
Tfie natural is that of //?/rt?icy.
The accidental defects are,
1. Dementia.
2. Casualty, or Chance.
3. Ignorance.
The civil defects are,
1. Civil Subjection.
2. Compulsion.
3. Necessity.
4. Fear.
Ordinarily none of these do excuse those persons, that are under
them, from civil actions to have a pecuniary recompense for injuries
done, as trespasses, batteries, tvoundings; because such a re-
compense is not by way of penalty, but a satisfaction for [ 16 |]
damage done to the party: but in cases of crimes and misde-
meanors, where the proceeding against them is ad pce?ia?n, the law
in some cases, and under certain temperaments takes notice of these
defects, and in respect of them relaxeth or abatelh the severity of their
punishments.
CHAPTER III.
TOUCHING THE DEFECT OF INFANCY AND NONAGE.
The laws of England have no dependence upon the civil law, nor
are governed by it, but are binding by their own authority ; yet
must it be confessed, the civil laws are very wise and well coniposed
laws, and such as have been found out and settled by wise princes
and law-givers, and obtain much in many other kingdoms so far as
they are not altered, abrogated, or corrected by the special laws or
customs of those kingdoms, and therefore may be of great use to be
known, though they are not to be made the rules of our English
laws; and therefore though I shall in some places of this book, and
here particularly mention them, yet neither I, nor any else may lay
any weight or stress upon them, either for discovery or exposition
16 HISTORIA PLACITORUM CORONA.
of the laws of England, farther than by the customs of England or
Acts of Parliament they are here admitted.
As to this business touching infancy, and how far they are capable
of the guilt or punishment for crimes, I will consider, 1. What the
civil laws tell us concerning the same. 2. What the common laws
of England have ordained touching it, and wherein these agree,
and wherein they differ touching this matter.
The civil law distinguishes the ages into several periods
£ 17 ] as to several purposes.
First, The complete full age as to matters of contract is
according to their law twenty-five years,(a) but according to the law
oi England iweniy -owe yeQ.xs.{b) - .
Seco)idly, Bnt yet before that age, viz. at seventeen years, a man
is said to be of full age, to be a procurator,(c) or an executor •,(^/)
and with that also our law agrees. 5 Co. Bejj. Pigol's case.(e).
. Thirdly. As to matrimonial contracts, the full age of consent in
males is fourteen years, and of females twelve ;(/) till that age they
are said to be impnberes,{g) and are not bound by matrimonial con-
tracts; and with this also our law agrees. (A)
Fourthly. As to matter of crimes and criminal punishments, espe-
cially that of death, they distinguish the ages into these four ranks.
1. JEtas pubertatis plena.
2. ,/Etas pubertatis.
3. JEtas puberlati proxima.
4. Infantia.
1. Pubertas plena is eighteen years.(/)
2. Pubertas generally, in relation to crimes and punish-
[ 18 ] ments, is the age of fourteen years and not before;(/*?) and it
seems as to this purpose there is no difference between the
(ff.) Institut. Lib. I. tit. 2, 3. De Curatoribus. Dig. Lib. IV. tit. 4. de Minoribus,
I. 1. Sfc.
(b) Li'. §. 104. Co. Lit. §. 103.
(c) Institut. Lib. I. tit. 6. Quibtis ex causis jnanumittere non licet, §. 5. &l 7. Dig. Lib,
III. tit 1. De Postulando, I. i. §. 3. At this age it was tiie custom among the Romans to
lay aside the habits of children, and put on the garments of men. Val. Max. Lib.
V. cup. 4. § 4. Sueton. Avgust. cap. 8.
(d) See Swinb. of Wills, /jar. V. § 1. n. 6.
(e) It is quoted in Prince''s case, 5 Co. Rep. 29. b. Office of Executors, p. 307.
(/) lastit. Lib. 1. tit. 10. de nuptiis pr. Dig. Lib. XXIII. tit. 2. de ritu nuptia-
rum, I. 4.
is) Institut. Lib. I. tit. 22. Quibus modis lutein Jinitur. pr. Dig. Lib. XXVIII. tit. 6.
de viilg. Sf pupil, suhstitut. I. 2. Macroh, Saturn. Lib. VII. cap. 7.
{hj Co. Lit. §. 104. At the same age they were perinitted by the civil law to make a
Testament. Diiscst. Lib. XXVIII. lit. 1. Qui testamenla facere possunt, I. 5. Institut.
Lib. II. tit. 12. Qiiibus non est permissuni facere testamenlum, §. 1. Cud. Lib. VI. tit. 22.
Qui tesiainenta facere possint, vet nol. I. 4. Tlie common law seems not to have deter-
mined precisely at what age one may make a testament of a personal estate, it is generally
allowed that it may be made at the age of eiglitcen. Office of Executors, p. 305. Co. Lit.
8!). b. and some say under, for the common law will not protiibit the spiritual coui;t in
such cases. Sir. T/ios. Jones, Rep. 210. 1 Vern. 2,55. 2 Vern. 409.
(i) Disc. Lib. I. lit. 7. de adoption. I. 40. § 1. Instil, eod tit. § 4, Dig, Lib.XLIl.tit. 1.
de re judical. I. 57. Lib. XXXIV. tit. 1. De ulimenlis, I. 14. i,. 1.
(i) Dig. Lib. XXIX. tit. 5. de Senatusconsulto iSilaniano, ^-c. I. 1. §. 32.
HISTORIA PLACITORUM CORONA. 18
male and female sex; at this age they are supposed to be doli capaces,
and therefore for crimes although capital, committed after this age
they shall suffer as persons of full age;(/) only by the constilutions
of some kingdoms, in favour of their age, the ordinary punishments
were not inflicted upon such young off'enders; as in Spain, not unless
he were of the age of seventeen years. Vide Covar. de Matrinio-
nio, cap. 5. §. 8.{m) In Relectione ad Clement, cap. Si Furio.'>its.{n)
By the ancient law among the Jews, he that was but a day above
thirteen years, was, as to criminals adjudged in virili statu, but not
if under that age.(t)
3. JEtas pubertati proxima, herein there is great difference
among \he Roman lawyers; and though they make a disparity here-
in between males and females, yet I think as to point of crimes the
measure is the same for both: Some assign this JEtas pubertati
proxima to ten years and a half; others to eleven yeajrs.(o) If they
be under the age which they call JEtas pubertati proxima, they are
presumed incapaces doli,{p) and therefore regularly not liable to a
capital punishment for a capital offence: but this holds not always
true; for according to the opinion of very learned civilians, before
ten years and a half they may be doli capaces, and therefore it must
be left ad arbitrium jndicis upon the circumstances of the case; yet
with this caution, Judex, qui ante illam getatem arbitrari debet pue-
rum esse proximum pubertati, maximis adducendus est conjecturis,
& cautissime id aget, ac tandem raro. Covarr. ubi supra. (q)
And with this agrees our law, as shall be showed. But if [ 19 1
the offender be in setate pubertati proxima, viz. according
to some ten years and a half, according to others eleven years old,
he is more easily presumed to be doli capax, and therefore may
suffer as another man, unless by great circumstances it appear, that
he is incapax doll. But this hath also its temperaments, 1. By ex-
press provision of the constitution in Codice de falsa Monetd-: "Im-
puberes, si conscii fuerint, nullum sustineant detrimentum, quia setas
eorum, quid videat ignorat ;" but a penalty is laid upon the tutor.(r)
2. Though setas pubertati proxima is regularly presumed Ca;r?«a:
doli, and so may be guilty of a capital offence. — Digest Be regulis
juris. (s) Pupillum, qui proximus est pubertati, capacem esse
fumiidi, yet as it is in arbitriojudicis to judge an infant within ten
il) Dig. Lib. IV. tif. 4. de mimribus, I. 37. ^. 1. Lib. XLVIII. tit. 5. ad leg. Jul. de
adult. I. 36. Cod. Lib. 2. tit. 35. Si adversus delictum. 1. 1.
(m) Tom. I. p. 157.
(n) Par. III. §. 5. Tom. I. p. 558.
(+) Seld. de Synedriis, Lib. II. cap. 13. §. 132.
(o) Tlie prevailing opinion is, that the males are pubertati proximi at fen and a half^
and the females at nine and a half, because when tliey had passed the middle distance
between infancy and puberty, they might then be properly said to be mtatis pubertati
proxima.
(?) Dig. Lib. XLVII. tit. 12. de sepulchro violato, I. 3. §. 1.
(9) Tom, l.p. 157. (r) Lib. IX. tit. 24. I. 4.
(s) Lih.'L.tit.ll.l 111, Lift. XXIX. tit. 5. de Senatusconsulto Silaniano.l.U. Lib.
yihW. lit. 4. de doli mnli exccptinne, I. 4. §. 26. Instit. Lib. IV. tit. 1. de obligat. qua
ex delicto, §. 18. Dig. Lib. XLVIII. tit. 2. defuriis, I. 23.
19 HISTORIA PLACITORUM CORONA.
years and a half capax doli, as before; so it is in arhilrio judicls
upon consideration of circumstance to judge one above ten years
and a half, nay of twelve, thirteen years, or but a day within four-
teen years, to be incapax doli^ and so privileged from punishment,
as appearing upon the circumstances of the fact not yet Qonstitulus
in Delate proximd pitbertati, or at least not doli capax; and with this
our law doth in a great measure agree.
3. That if he be above ten years and a half, and appears doIi ca-
pax, yet if under fourteen years, he is not to be punished poena oi^di-
narld, but it may have some relaxation ex arbilrio jiidicis.{t) But
although our law indulges a power to the judge to reprieve before
or after judgment an infant convict of a capital offence in order to
the King's pardon, yet it allows no arbitrary power to the judge to
change the piniishment that the law inflicts; and thus far for the
third age or period, JEtas piiberlali proxima.
4. The fourth age or period is infantia, which lasts till seven
years; within this age there can be no guilt of a capital offence; the
infant may be chastised by his parents or tutors, but cannot be capi-
tally punished, because he cannot be guilty;(7/) and if
[] 20 ] indicted for such an oftence as is in its nature capital, he
must be acquitted ; and therefore the severity of the gloss
upon the decretal De delictis puerorum, cap. \.{x) is justly rejected
in this case \[y) and with this agrees the law of England.
But now let us consider the laws of England more particularly
touching the privilege of infancy in relation to crimes and their
punishments, and that in relation to two kinds of crimes, 1. Such as
are not capital. 2. Such as are capital.
First, As to misdemeanors and offences that are not capital: in.
some cases an infant is privileged by his non-age, and herein the pri-
vilege is all one, whether he be above the age of fourteen years or
under, -if he be under one and twenty years; but yet with these dif-
ferences :
If an infant under the age of twenty-one years be indicted of any
misdemeanor, as a riot or battery, he shall not be privileged barely
by reason that he is under twenty-one years,[l] but if he be con-
victed thereof by due trial, he shall be fined and imprisoned ; and the
reason is, because upon his trial the court ex ojficio ought to consider
and examine the circumstances of the fact, whether he was doli
capax, and had discretion to do the act wherewith he is charged ;
and the same law is of a femme covert. 2. But if the oflence
charged by the indictment be a mere non-feasance, (unless it be of
such a thing as he is bound to by reason of tenure, or the like as to
repair a bridge, <5*c.)(c) there in some cases he shall be privileged by
(0 Dig- Lib. IV. t')t. 4. de minorilnis, I. 37. §. In delictis,
(u) iJifT. Lib. XLVII. tit. 2. de furtis, I. 23. Ld,. XLVIII. tit. 8. ad les;. Cornel, de
aicariis l. 12. {x) Decretal. Lib. \. til. 23. (y) 3b/n. l.p. 157.
(2) 2 Co. Inst. 70.3.
[1] See 4 Dl. Com. 23. 1 Huss. on Crimes 2. Co. Litt. 274. b.
IIISTORIA PLACITORUM CORON^E. 20
his nonage, if under twenty one, though above fourteen years,
because Lnches in such a case shall no.t be imputed to him.(Q)
36 E. 3. Jlssis. 443. 4 //. T. 11. b. If an infant in Assise vouch a
record, and fail at the day, he shall not be imprisoned, (6) nor it seems
di feme covert. 13 Assis. l.(c) and yet the statute of IVestminst. 2.
cap. 25. that gives imprisonment in such a case, is general.
8 E. 2. Corone 395. l( A. kills B. and C. S,- D. are pre-
sent, and do not attach(r/) the offender, they shall be fined [ 21 ]
or imprisoned; yet if C. were within the age of twenty-one
years, he shall not be fined nor imprisoned.
3. Where the corporal punishment is but collateral, and not the
direct intention of the proceeding against the infant for his misde-
meanor, there, in many cases, the infant uiider the age of twenty-
one shall be spared, though possibly the punishment be enacted by
parliament. 14 Jiss. 17.(e) If an infant of the age of eighteen be
convict of a disseisin with force, yet he shall not be imprisoned.
Vide 26 Ass. 9. 43 E. 3. Imprisonment 16. 40 E. 3. 44. a.{f) and
yet a feme covert shall be imprisoned in such case. 16 Ass. 7.
If an infant be convict in an action of trespass vi <§• armis, the
entry must be nihil de fine, sed pardonatnr, quia infans ; for if a
cupiatur be entered against him, it is error, for it appears judicially
to the court, that he was within age when he appears by guardian.
P. 8. Jac. B. R. Holbrooke v. Dogley, Croke, n.'3.;{g) the like law
is that he shall not be in misericordia pro fa/so clamore.(h)
B. Coverture 68. General statutes that give corporal punishment
are not to extend to infants, and therefore Fl. Com. 364, a per
Walsh, if an infant be convict in ravishment of ward, he shall not be
imprisoned, though the statute of I\ferto7i cap. 6. be general in that
case:(/) but this nmst be understood where it is, as before said, a
punishment as it were collateral to the offence, as in the cases before-
mentioned : but where a fact is made felony or treason,
it extends as well to infants, if above fourteen years,(/t) as [ 22 ]]
to others, as shall be said. And this appears by several
acts of parliament, and particularly by I Jac. cap. 11. of felony for
marrying two wives, &c. where there is a special exception of mar-
riages within the age. of consent, which in females is twelve, in males
(a) B. Saver default, 50. Cro. Juc. 465, 466. PI. Com. 364. a. Co. Lit. 246. 6.
(6) 2 Co. liisti't. 414. (c) B. Coverture 35. Resceit 87.
{d) The words of the book are ne leve le main d^attach. (e) F. Imprisonment 8.
_ (/) " Et le cause est, pur ceo que la ley eiitend', que un enfant ne poit my conustr'
bien &, mal' ne le quel foil advant.iije pour luy, ou neiny ; ne nul foly serra adjudge ea
un enfant." Mes. 12. H. 4. 22. b. Hank, dit que enfant d'age de 18 ans poit estre dissei-
sor ove-force & estre emprison per cella. {g) Cro. Jac. 274.
(/') Co. Lit. 127. a. yet this was not a settled point, for 2. E. 3. 5. tiie court doubted
of it; and in 17 E. 3, 75. 6. and 41 Assis. 14. the plaintiffs, though infants, were amerced
pro falso clamore; but though tiiey were amerced, yet it appears from the same cases
that ihey were entitled on account of tlieir infancy to a pardon of course. See 1 R. A.
214.
(i) Anotlier like case is there put, if an infant be a receiver and account before audi-
tors, and be found in arrears, the auditors cannot commit him to prison notwithstanding
the general words of the statute of W. 2. cap. 11.
{k) Co. Lit. 247. 6.
VOL. I. — 3
22 HISTORIA PLACITORUM C0R0NJ5:.
fourteen years; so that if the marriage were above the age of con-
sent, though within the age of twenty-one )^ears, it is not exempted
from the penalty.
So by the statnte of 21 H. S. cap. 7. concerning felony by servants
thai embezzle their Tnasler^s goods delivered to them, there is a spe-
cial proviso, that it shall not extend to servants under the age of
eighteen years, who certainly liad been within the penalty, if above
the age of discretion, viz. fonrteen years, though under eighteen
years, unless a special provision had been to exclude them.(/)
I come therefore to consider the privilege of infancy in cases of
capital offences and punishments according to the laws oi England,
wherein I shall examine, 1. How the ancient law stood. 2. How it
stands at this day in relation to infants.
I, As to the ancient law:
1. By what has been before said it appears that the Civil law was
very uncertain in defining what was tliat setas pubertati proxima,
and consequently such as might subject the offender to capital guilt
or punishment; some taking it to be ten years and a half, some
eleven years, others more, others less. The laws of Engtund there-
fore, that always aflect certainty, determined anciently the setas
pubertati proxima to be twelve years for both sexes; under that
age none could be regularly guilty of a capital offeuce, and above
that age and under fonrteen years, he might or might not be guilty
according to the circumstances of the fact that might induce the
court and jury to judge liim doli capux, vel incapax.{m)
This appears by the laws of king Jithelstan mentioned
r 23 1 in the first chapter, " Non parcatur alicui latroni super 12
annos & supra 12 d. quin occidotur.'-' And although his
successor Edmund{n) reduced it to fifteen years, unless he fled, yet
it will appear that the standard of twelve years obtained in after
ages.(o)
2. It appears that an infant of twelve years was compellable to
take the oath of allegiance in the leet, and under that age none were
to take the oalh, or to do suit to the leet. Bract. Lib. \\\.{p) cap.
(/) The like exception there is in tlie 12 Ann. cap. 7. where apprentices under the age
of fiflren years, who t-liall rob their masters, are excepted out of the act.
(?«) By the laws of Ina, I. 7. an infant of ten years of age might be guilty of being
accessary to a thcfl, and was punished accordingly with servitude. \Mlk. Leg. Anglo-
Sax, p. 1 6. ■ ,
(7j) This is a mistake, for it was not Edmund but king Alhiislan himself, who think-
ing it a piliable case tluit a youth but twelve years old should be put to death, as was
permitted by the former l.iw, changed tlic time from twelve years to rifteen, and ordered
that none who was but fifteen years of age should be put to death, unless he resisted or
fled; if he surrendered himself, hu was only to be imprisoned until some of his rela-
tions or friends would become security for him jiixia pleufi7)i capitis (Estimationein, ut
semper uli unini malu ahslineal : if he could not get any such security, then lie was to
take an o:ith,to tiie same purpose in such manner as the liisliop sliould direct him, and
was to rcinain in servitutc pro capitis siii astiuialionc ; but if alter this he should be
again guilty then he was to be put to death without any regard to his age. Sec WHk.
Lrpes An:jlo-Siix. p.lO.
(o) In tl:c time of king Henry I. the old ^w of king Athehtan took place, viz. twelve
years of ago, and 8c/, valiiC. I.id.p.2o'J.
{p) Dc Corona. ; " . .
HISTORIA PLACITORUM CORON.^. 23
l.{q) Britton, cap. 29, in Jine, Calvin's case, 7 Co. Ecp. 6. h. So
that at that age, and not before, he was taken notice of by the law
to be under the obligation of an oath, and consequently capable of
discretion.
3. The ordinary process against capital offenders was and is by
Capias and Exii^enl, aiid Vtlary thereui)on; but against an infant
under twelve, process of iitlary in cases of indictment was not
awardable, and if awarded, it was error: but if above that age, that
process was awardable; and Bract. Lib. Ill.(r) cap. 11, sect. 4 «5*
5. gives the reason, "Elinor vero, qui infra astatetn 12 annorum
fiicrit utlegari non debet, quia ante talem setatem non est sub lege
alitjua nee in decenna ;" and ibidem cap. 10 sext. 1, he mentions an
old law of k\\\2, EdLvard,{s) "Omnis, qui aitatis 12 annorum fuerit,
facere debet sacramentum in visd franciplegii, quod nee latro
vult esse, nee latroni consentire;" and .Stamf. Lib. I. cap. [] 24 ]
19, cites out of a book of Bracton, De Visit Franci plegii,
"Quod quilibetduodecini annorum potest felonise judicium sustinere,"
which implies also that within that age, regularly at least, he could
not be a felon,
4. Again, T. 32. E. I. Hot. 32. " Eboracum, coram rege, Adam
filins Adae de Arnhale captus noctanter in domo Johannis Somere
coram rege ductus cognovit, quod furtive cepit, &c.- 9s. per preceptum
& missionem Richardi Short :" Richard Short had his clergy, '■' Et
prasdictus Adam commissus fuit custodiae mariscalli custodiend', quia
infra aetaten); postea habito respectu ad imprisonamentum, quod
praedictus Adam habuit, & etiam ad teneram a^tatem ejusdem Adas,
60 quod non est nisi ajtatis 12 annorum, qui talis setaiis judicium
ferre non potest, ideo de gratia regis deliberetur, &c," Upon this
record these things are observable, viz. 1. The court recorded his
confession; but regularly that ought not to be, for if an infant under
the age of twenty-one shall confess an indictment, the court in jus-
tice ought not to record the confession, but put him to plead not
guilty, or at least ought also to have inquired by an inquest of office
of tlie truth and circumstances of the fact, 2. That liere he was
twelve years old, and yet judgment s[)ared,- and the reason given,-
(^ui talis setaiis judicium ferre non potest. Yet 3. There is some-
what still of gratia regis interposed, as it seems, in respect he was
past the old standard of twelve years.
U. But now let us come to the Common law as it stood in after-
{q) This seems to be a mistake, for cap. 11. sert. 4. for the oath mentioned in cap. 1.
wiis to be taken by knights and others of the age of fifteen years and upwards.
(r) De Corona.
((••J There is no such law extant among those of king Edward, biit the law here
quoted is a law of Cnute, Leg. Cnuti, I. 1!J. which is in tlicse words, Vuliimus ut quiU.
Let homo \2 annos iiatus jiisjurandum prceslet se nol'.e fiirem esse neque furi consenta-
nenm, which oath is to the same purpose witli tliat mentioned by Brnclon, Lib. iii. de
corona, Clip. 1. to l)e taken at the age of fifteen ; and though there be a difiVrcncc as to
the age, yet probably it is tlie same oath, for it is very easj' and natural to mistake xii
for XV. See the statute of Marlliridrre, cap. 10. i^- 25. and lord Coke's comment thereon,
2 Instil. ,141. where he takes notice that the old books are misprinted. See also 2 InstiU
72. Mirror, cap, 1, §. 3. Britlon, cup. 12.
24 HISTORIA PLACITORUM CORONA.
times; for in process of time, especially in and after the reign of king
Edwitrd III. the Common law received a greater perfection, not by
the change of the Common law, as some have thought, for that could
not be but by act of parliament ; but men grew to greater. learning,
judgment and experience, and rectified the mistakes of for-
j^ 25 3 mer ages and judgments, and the law in relation to infants
and their punishments for capital offences was and to this
day is as foUoweth.
1. It is clear that an infant above fourteen and under twenty-one
ia equally subject to capital punishments, as well as others of full
age ; for it is prsesumplio jin^is, that after fourteen years they are
doli capaces, and can discern between good and evil ; and if the law
should not animadvert upon such offenders by reason of their nonage,
the kingdom would come to confusion. Experience makes us know
that every day murders, bloodsheds, burglaries, larcenies, burning of
houses, rapes, clipping and counterfeiting of money, are committed by
3'ouths above fourteen and under twenty-one; and if they should
have impunity by the privilege of such their minority, no man's life
or estate could be safe.(/) In my remembrance at Thetfurd a young
lad of sixteen years old was convict for successive wilful burning of
three dwelling houses, and in the last of them burning a child to
death, and yet had carried the matter so subtilly,that by a false accu-
sation of another person for burning the first house an innocent per-
spn was brought in danger, if it had not been strangely discovered:
he had judgment to die, and was accordingly executed. (?/)
Fourteen years of age therefore is the common standard, at which
age both males and females are by the law obnoxious to capital
punishments for offences committed by them at any time after that
age; and with this agrees Fltz. N. B. 202. b.{x) Co. Lilt. § 405.(^)
VideMw Dallon^s Justice of Peace, cup. 95. and 104.(z)
2. An infant under the age of fourteen years and above
r 26 ]] the age of twelve years is not prima facie presumed to be
doli capax, and therefore regularly for a capital offence
committed under fourteen years he is not to be convicted or have
judgment as a felon, but may be found not guilty. [2]
{t) Our aulhor'.s arg-umcnt concludes very strongly against tlicir escajjingf with unpu.
nity, hut loses much of its force when urged in behalf of capital punishments, for there
is no necessity that if they be not capitally punisliedtiiey must therefore go unpunished;
80 that whatever severity may be needful in cases of murders and aets'of violence, yet in
tlie common instances of larceny and stealing, some other punisiiment might be found,
which niiglit leave room for tlic reformation of young offenders.
((/■) At Abingdon assizes, l'\li. 23, lG2i), before \\'hitlock justice, one John Dean, an
infant, between ciglit and nine years, was indicted, arraigned, and found guilty of burn-
ing two barns in the town of Windsor ; and it ajipcaring ujjon exaiiiinatiim that he )iad
malice, revenge, craft, and cunning, he had judgment to lje lianged, and was hanged
accordingly. MS. Report.
(x) N. Edit. p. 450. (y) ;j. 247. b.
{z) 'J'he first edition, but in the last edition, cap. 147 and 157.
[2] " By the ancient Saxon law, tiie age of twelve years was estabhshcd for the ago
of possible discretion when first the understanding might o|K'n; and from thence until
the offender was fourteen, it was wtas pubertuti proxima, in whith he miglit or might
HISTORIA PLACITORUM CORON.^. 26
But {hou2;h prima facie and in common presumption this be true,
y€t if it appear to the court and jury that he was f/oii capax, and
could discern between good and evil at the time of the offence com-
mitted, he may be convicted and undergo judgment and execution
not be guilty of a crime, according- to his natural capacity or incapacity. Ttiis was the
dubious stage of discretion ; but under twelve it was held that he could not be guilty ia
will, neitlier after fourteen could be supposed to be innocent, of any capital crime which
he in fact committed. By the law as it now stands, and has stood at least since the time
of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much mea-
surcd by years and days, as by the strength of the delinquent's understanding and judg-
ment. For one lad of eleven )'ears old may have as much cunning as another of four-
teen, and in these cases our maxim is, ' malitia supple.l (Btatem.'' Under seven years of
age, indeed, an infiint cannot be guilty of felony, for then a felonious discretion is almost
an impossibility in nature; but at eight years old he may be guilty of felony. Also
under fourteen, though an infant, shall be prima facie adjudged to be doli incapnx; yet
if it appear to tlie court and jury that he was doli capax, and could discern between good
and evil, he may be convicted and sutler death." 4 Stephen's Comrn. 75, 76. 4 Black.
Cowm. 23. 2 Stephen's Comrn. 331, 332. Land. Ed,
The case cited by Blachslone from Foster, 70, is Yorke's case, and is deemed an im-
portant one by Sir William Russell, (I Russ. on Crimes, 4.) It was this. At Bury
Summer Assizes, 1748, Williarn Yorke, a boy of ten years of age, was convicted before
Lord Chief Justice lV?7/?s for the murder of a girl, of about five years of age, and
received sentence of death ; but the Chief Justice out of regard to the tender years of
the prisoner, respited execution till he should liave an opportunity of taking the opinion
of the rest of the judges whether it was proper to execute him or not upon the special
circumstances of the case; on which he reported to the judges at SergeanVs Inn in
Miciiaclmas Term following. The boy and girl were parish children, put under the care
of a parishioner at whose house they were lodged and maintained; on the day the mur-
der happened, tlic man of the house and his wife went out to their work early in the
morning, and left the children in bed together: when they returned from work, the
girl was missing, and the boy being asked what was become of her, answered that he
had helped her up and put on her clothes, and that she had gone he knew not whither.
Upon this, strict search was made in the ditches and pools of water near the house, from
an apprehension that the child might have fallen into the water. During this search,
the man under whose care the children were, observed that a heap of dung near the
liouse had been newly turned up, and upon removing the upper part of the heap, he found
the body of the child about a foot's depth under the surface, cut and mangled in a most
barbarous and horrid manner. Upon this discovery, the boyj who was the only person
capable of committing the fact, that was left at home with the child, was charged with
the fact, which he stiffly denied. When the coroner's jury met, the boy vvas again
charged, but persisted still to deny the fact. At length being closely interrogated, he
fell to crying, and said he would tell the whole truth. He then said that the child had
been used to foul lierself in bed; that she did so that morning, (which was not true, for
the bed was searched and found to be clean,) that thereupon he took her out of bed and
carried her to the dung heap, and with a large knife which he found about the house,
cut her in the manner the body appeared to be mangled, and buried her in the dung heap,
placing the dung and straw that was bloody under the body, and covering it up with
what was clean ; and having so done, he got water and washed himself as clean as he
could. The boy was the next morning carried before a neighbouring justice of the
peace, before whom he repealed his confession, with all the circumstances lie had related
to the coroner and his jury. 'I'he justice of the peace very prudently deferred proceeding
to a commitment until the boy should have an opportunity of recollecting himself. Ac-
cordingly he warned him of the danger he was in if he should be thougiit guilty of the
fact he stood charged with, and admonished him not to wrong himself, and then ordered
him into a room where none of the crowd that attended should have access to him.
\Vhen the boy had, been some hours in this room, where victuals and drink were pfo-
vided for him, he was brought a second time before the justice, and then he repeated his
former confession, upon which he was committed to jail. On the trial, evidence was
gi^n of the declarations before mentioned to have been made lx;fore the coroner and his
jii^, and before the justice of the peace; and of many declarations to the same purpose
26 HISTORIA PLACITORUM CORONA.
of death, though he hath not attained annum pnberfatis, viz. four-
teen years; though according to the nature of the oflence aird cir-
cumstances of the case the judge may or may not in discretion
reprieve him before or after judgment, in order to the obtaining the
wliich the boy made to other people after he came to jail, and even down to -the day of
his trial: for he constantly told the same story in substance, commonly adding that the
devil put him upon committing the foot. Upon this evidence, with some other circum-
stances tending; to corroborate tlie confessions, he was convicted.
U|ion this report of {he Chief Justice, the judges, having taken time to consider of, it,
unanimously agreed, 1. Tliat the declarations stated in the report were evidence proper
to be left to the jury. 2. That supposing the boy to have been guilty of this fact, there
were so many circumstances stated in the report which were undoubtedly tokens of
what Lord Hale calls mischievous discretion, that he was certainly a proper subject for
capital punishment, and ought to sutTer ; for it would be of very dangerous consequence
to have it thought that children may commit such atrocious crimes with impunity.
That there are many crimes of the most heinous nature, such as (in the present case)
the murder of young children, poisoning parents or masters, burning houses, &e., which
children are very capable of committing, and, which they may in some circumstances be
under strong temptations to commit; and therefore, though the taking away the life of
a boy often years old might savour of cruelty, yet, as the example of that boy's punish-
ment mjght be a means of deterring other children from the like offences, and as the
sparing the boy, merely on account of his age, woidd probably have a quite*contrary
tendency; in justice to the public, the law ought to take its course, unless there re-
mained any doubt touching his guilt. In this general principle, all the judges concurred ;
but two or three of them, out ot great tenderness and caution, advised the Chief Justice
to send another reprieve lor the prisoner, suggesting tliat it might possibly appear, on
further inquiry, that the boy had taken this matter upon himself at the instigation of
some person or other who hoped by this artifice to screen the real offender from justice.
Accordingly the Chief Justice granted one or two more reprieves; and desired the jus-
tice of the peace who took the boy's examination, and also some other persons in whose
prudence he could confide, to make the strictest inquiry they could into the affair and'
report to him. At length he, receiving no farther light, determined to send no more
reprieves, and to leave the prisoner to tlie justice of the law at the expiration of the last :
but, before the expiration of that reprieve, execution vi^as respited till further order, by
warrant from one of the secretaries of state: and at the Summer Assizes, 1757, the pri-
soner had the benefit of His Majesty's pardon, upon condition of liis entering imme-
diately into the sea service. Yorkers Case. Fost. li. 70.
Two remarkable cases of commission of the crime of murder by boys under fourteen
years of age, have occurred in New Jersey. In^ April, 1818, Aaron, (a coloured boy,)
was tried tor the murder of a child, StejJien Condlij, little more than two years old, by
throwing him over the curb into a well. The whole material testimony in the case was
a confession made by the boy. The Chief Justice, {Kirkpatrick,) in the course of liis
opinion, holds the following language: " With respect to the liability of infants to punish-
ment, and to the giving of their confessions in evidence against them, much might be
said, and ought to be said with great caution. It is periijctly settled, that an infant
within the age of seven years cannot be punished for any capital offence, whatever cir--
cumstances of mischievous intention may be proved against him, for by the presumption
of law, he cannot have discretion to discern between good and evil, and against this
' jjrcsumption no averment can be admitted. It is perfectly settled also, that between the
age of seven and the ago of fourteen years, the infant shall be presumed to be incapable
ot' committing crime upon the same principle, the presumption being very strong at
seven, and decreasing with the progress of' his years; but then this prcsu)n[)tion, in this
case, may be encountered by proof; and if it shall appear by stronir and irretiistiljle evi-
dence that he had sufficient discernment to distinguish good from evil, to comprehend
the nature and consequences of his acts, he may be convicted and have judgment of
death." The Slate v. Aaron, I South. R. 231. 238. 247. Mr. Justice SoiiiharJ, in the
same case, holds,much the same language. "The distinctions which have been taken
in the books, as to age, when crimes may be eoinmitted. and the criminal punished, are
in no ineonsidiu'ablc degree arbitrary. The great subject of iixpiiry in all cases ou'rht
to be, the legal capacity of the prisoner; and this is found in some much earlier flRn
IIISTORIA PLACITORUM CORONA. 26
kins's pardon. 12 .^.vv. 30. Coroiie 118 8^- 170. t.^lice de Waldho-
rnui^h of the age of tliirteen years was burnt by judgment for killing
her mistress; and it is there said, that by the ancient law none shall
be hanged within age which is intended the age of discretion, viz.
others. The real value of the distinetions, is, to fix the part}', upon whom this capacity
lies. There is, indeed, an age so tender, tiiat the nature and consequences of acts can-
not be comprehended, and every uncorrupted feeling of the heart, as well as every moral
and Icjfal principle forbids punishment. 13ut after we pass tliis age and progress towards
maturity, there have been periods settled, which ascertain the presumption of law, as to
the existence of tiiis capacity. If under fourteen, especially under twelve years, the law
presumes that it does not exist, and if the Slate seek to punish, it must conclusively estab-
lish it. If above the age of fourteen, the law presumes its existence, and if the accused
would seek to avoid punishment, he must overcome that presumption by suflicicnt evi-
dence. But wherever the capacity is established, either by this presumption of law or
the testimony of witnesses, punishment always follows the infraction of the law. If the
intelligence to apprehend the consequences of acts; to reason upon duty, to distinguish
between right and wrongj if the consciousness of guilt and innocence be clearly mani-
fested, then this capacity is shown ; in the language of the books, the accused is capax
(loli, and "as a rational and moral agent must abide the results of his own conduct." Id.
245, 246. The prisoner, in this case, was ten years and ten months old. From the
printed report it only appears that a new trial was granted; but the Editor has been
informed by one of the counsel for the defendant, that the prisoner was acquitted by the
jury on the second trial.
In 1828, J«mcs Guild, a coloured boy, of the age of twelve years and- five months, was
indicted for the murder of Catharine Be-jkes, and found guilty. On a motion for a new
trial made to the Court of Oyer and Terminer, the Supreme Court in an advisory opinion,
held themselves bound to advise the Court of Oyer and Terminer not to grant a new
trial, but to proceed to discharge their duty by pronouncing the sentence of the
law on the crime of murder. After an elaborate examination of the authorities, the
then Chief Justice (Ewing,) re-iteraied the ojjinions of Chief Justice Kirkpairick,
and Mr. Justice Southard, in The State v. Aaron, cited supra. "The age of the pri-
soner was earnestly pressed on our consideration by his counsel, who strenuously
insi-tcd he was too young to be exposed to punishment on such evidence, (his own con-
fession.) At the perpetration of the oiFcnce he was aged twelve years and somewhat
more than five months. The sound, sensible, and legal rule on this head is, in our
opinion, judiciously as well as lucidly stated by Justice Southard in the case oi' Aaron,
(supra.) In Leaclis edition of Hawkins, B. I. c 1, page 1, in note, it is said, "from the
supposed imbecility of mind, the protective humanity of the law, will not, without anxi-
ous circumspection, permit an infant to be convicted on his own confession. Yet if it
appear by strong and pregnant evidence and circumstances, that he was perfectly con-
sciiius of the nature and malignity of the crime, the verdict of a jury may find him g^uilty,
and judgment of death be given against him." The Slate v. Guild, 5 Halst, R. 189.
1 Gveenl. on Ev. § 217. 219. 221. 222. 223.
If a child more than seven and under fourteen years of age, is indicted for felony, it
will be left to the jury to say whether the offence was committed by the prisoner, and, if
so, whether at the time of the offence, the prisoner had a guilty knowledge that he or
6h& was doing wrong. The presumption of law is, that a child of that age has not such
guiliy knowledge, unless the contrary be proved by the evidence. Rex v. Owen, 4 Carr.
S( Pay. iJ.236, per Littledale, J. See Rex v. Gronmrid^e, 7 Carr. 4- Pay. R. 582, per
Gasclee, J. BcH on Presump. 22, citing a MS. Report of the S. C. 2 M. C. C. R. 122.
S. C. 1 Gree.nL on Ev. § 28. The People v. Davis, 1 Wheeler's Crim. Cas. 2.30. The
People V. Teller, 1 /</. 231 , & note. Com. v. Lani^an, 2 Boston Law Rep. 49, per Tha'cher,
J. Wharton's Am. Crim. Law, 17. 19. CaSe of Moses Chapman Elliot, 4 Boston Law
Rep. 32'J. Com. V. Freud), Thatcher's Crim. Cas. 103. Burn's Just. tit. Children, 29,
cd. by Chitti/ Sf Bere. Com. v. Ktairy, \ Ashmead R. 256, per Krn<r, fres. Ward v.
TheCom.3Lei;^h.R.li3.
In Massrichusctts it has been decided that an infant under the age of fourteen years,
may be indicted for an assault with intent to commit a rape. Commonwealth v. Green,
2 lick. 380. This case conflicts with Reg. v. Vhil'ip^, 8 Car. ^ P. 736, in which it was
26 HISTORIA PLACITORUM CORONA.
fourteen years; but before Spigiirnel an infant within age(«) that
had killed his companion, and hid himself (.se miicha) was presently-
hanged; for it appeared hj h'\5 mucking he could discern between
good and evil, and malitia svpplet xtatem.
25 E. 3. 85. Corone 129. One within age was found guilty of
larceny, and by reason of his nonage judgment was respited, but
afterwards he was brought to the bar and had his judgment; though
this book be generally one ivilhin age, it must be intended within
the age of discretion, viz. fourteen years, for it was never made a
doubt, whether if above that age he might not have judgment.
3. But yet farther, if an infant be above seven years old, and under
twelve years, (which according to the ancient law was JEtas puber-
tati proxima,^u(!i commit a felony, in this case prima facie he is to
be judged not guilty, and to be found so, because he is supposed not
of discretion to judge between good and evil ;(6) yet even in that
case if it appear by strong and pregnant evidence and circum-
[ 27 ] stances, that he had discretion to judge between good and
evil, judgment of death may be given against him. 3H.1. 1.
b. <5' 12. b. An infant of the age of nine years killed an infant of the
like age; he confessed the felony, and upon examination it was
found he hid the blood and the body; the justices held he ought to
be hanged. (c)
But in cases of this nature, 1. It is necessary that very strong and
pregnant evidence ought to be to convict one of that age, and to
make it appear he understood what he did; for if the law require
such an evidence where the offender is above twelve, and under
fourteen, much more if he were under twelve at the time of the fact
committed. 2. The circumstances must be inquired of by the jury,
and the infant is not to be convicted, upon his confession. 3. It is
prudence in such a case even after conviction to respite judgment, or
at least execution ;((/) but yet I do not see how the judge can dis-
charge him if he be convict, but only reprieve him from judgment,
and leave him in custody till the king's pleasure be known.
And therefore the book of 35 H. 6. 11. <5' 12. per Moyle Sf Billing,
" That though a jury should find such an infant guilty, the court
ex officio must discharge him,^^ must be understood either ^^5/ only
of a reprieve before judgment, or secondly at least, that the jury find
(a) Ten years old, according to FilzherberCs Report Corone 118.
\b) B. Corone 13.'i.
(r) But liowcvcr they respited tlic execution tliat lie miglit get qi pardon. F. Corone bl,
B. Corone I'.iS. Dallon says that an infant ofcijrht years of age may commit homicide,
and siiali be iianged for it. See Dalluris Justice, cap. 147.
{(1) Dalt. Justice, p. 505.
held, (Palteson, J.) that a boy wiio at the time of the commission! of the offence of rape,
vias under fourteen years of age^ could not, in |)oint of law, be guilty of an assault with
intent to commit a rape; and if he was under tliat age no evidence is admissible to
fihow tli:it, in point of fact, he could commit the ollince of rape. See also to the same
clfirt, Iti(rina v. Jordan, 'J Car. ^^• I'. IIH. Jieiiinu v. Brbniloio, 9 Car. ^ P. 366.
Under the iStatute, 1 Xict, c. 85, s. 11, he might be convicted of an assault.
HISTORIA PLACITORUM CORONA. 27
the fact, and that lie was either within the age of infancy, viz. seven
years old, or that he did the fact, but was under fourteen, and not of
discretion to judge between good and evil; in which case the court
ex officio ought to discharge him. because it is not felony.
4. And lastly, If an infant within age be infra setatem infantisCj
viz. seven years old, he cannot be guilty of felony,(c) what-
ever circumstances proving discretion may appear; for ea? [ 2S ]
prcsumptione juris he cannot have discretion, (/) and no
averment shall be received against that presumption: and aUhough
tlie laws of England, as well as the Civil and Canon law, assign a
difference between males and females as to their age of consent to
marriage, viz. fourteen to the male, twelve to the female; yet it
seems to me, that as to njatters of crimes, especially in relation to
capital punishments, the females have the same privilege of nonage
as ihe males; and therefore the regular JEtas piibertatis'm reference
to capital crimes and punishments of both is fourteen years, with
those various temperaments and exceptions above assigned.
And it is to be observed, that in all cases of infancy, insanity, <5'C. if a
person uncapable to commit a felony he indicted by the grand inquest,
and thereupon arraigned, the petit jury may either find him generally
not guilty, or they may find the matter specially, that he committed
the fact, but that he was non compos, or that he was under the age
of fourteen, [3] scilicet setatis 13 annoriim, and had not discretion to
discern between good and evil, S,' no7i per feloniam ; and thereupon
the court gives judgment of acquittal. 21. //. 7. 3I.(,§-) But if a man
be arraigned in such a case upon an indictment of murder or man-
slaughter by the coroner's inquest, there if the party committed the
fact, regularly the matter ought to be specially found, because if the
jury find the party not guilty, they must inquire how he came by his
death, viz. "Et juratores prsedicti quaesiti per curiam, quomodo is
ad mortem suam devenitdicunt super sacramentum suum, quod prae-
dictus A. B. die anno apud D. dum non fuit compos mentis,
or dum fuit infra setatem discretionis, scilicet 9 annorum, nee scivit
discernere inter bonum & malum, pra3dictum J. S. cum gladio, &c.
percussit & ipsum ad tunc & ibidem occidit, sed non ex malitia pre-
cogitata neque per feloniam, vel felleo animo; & sic idem J. S. ad
mortem suam devenit." But if he be first arraigned, and
acquitted upon the indictment by the grand inquest, and [ 29 ]]
found not guilty, he may plead tliat acquittal upon his
arraignment upon the coroner's inquest, and that will discharge him;
and tiie petit jury shall inquire farther liow the party came by his
death.
(c) And yet there is a precedent in the register, /o.'. 309. b. of a pardon granted loan
infant within the age of seven years, who was indicted ibr homicide; in lliis case the
jury found, that he did the fact beibrc he was seven years old.
(J) Plomd.l'i.a.
if) B. Corone 61.
[3] See Com, v. Lanigan, 2 (Boston) Law Rep, 49.
VOL. I. — 4
29 HISTORIA PLACITORUM CORONJ^:.
CHAPTER IV.
CONCERNING THE DEFECT OF IDIOCY, MADNESS AND LUNACY, IN
REFERENCE TO CRIMINAL OFFENCES AND PUNISHMENTS.
And thus far touching that natural defect of infancy. Now con-
cerning another sort of defect or incapacity, namely idiocy, madness
and lunacy. For though by the law of England no man shall
avoid his own act by reason of these defects, (c/) though his heir or
executor may, yet as to capital offences tliese have in some cases tha
advantage of this defect or incapacity ;(/;) and this defect comes under
the general name oi Dementia, which is thus distinguisiied.
I. Idiocy, or fa/uily a nativitate vel dementia natii)Htlis;[l] such
a one is described by Fitzlierbert, who knows not to tell 20^, nor
knows who is his father or mother, nor knows his own age; but if
he knows letters, or can read by the instruction of another, then he
is no idiot. F. N. B. 233. h. These, though they may be evi- ,
dences, yet they are too narrow, and conclude not always, for idiocy
or not is a question of fact triable by jury, and sometimes by
inspection.
II. Deynentia accidentalis vel advcntitia, which proceeds
r 30 3 f''om several causes; sometimes from the distemper of the
humours of the body, as deep melancholy or adust choler ;
sometimes from the violence of a disease, as a fever or palsy; some-
times from a concussion or hurt of the brain, or its membranes or
(a) For it is said to be a maxim in law, lliat no man of full age shall be permitted to
stultify himself. 4 Co. Rep. 123. b. Beverly's case, Co. Lit. 247. a. 1'he reason hereof
is, because a man cannot know or remember what acts he did when he was of jfon sane
memorij. 35 Assis. pi. 10. See contra F. N. B. p. 44i). Show. Ca. Furl. 153. 2.
Sa!k. 576.[2]
(6) Co. Lit. 247. b Plowd. 19. a.
[1] See Wheller\. Alderson, 3 Haorg. R. G02. Ruij on Insanity, c. 2. p. 69. 2d. Ed.
[2] Black. Comm. 291, 292; 1 Fonbl. Eq. B. 1. ch. 2. § 1 and note (d); Co. Lilt. 247.
Yules V. Buen, 2 Sir. R. 1104. See Shelford on Lunatics, ch 6. ^ 2. p. 263. ch. 9. §-2.
p. 407, S^-c. Baxter v. Fortamouth, 7 JJowl. c^- Uyl. 618; S. C. 5 Barn. ^ Cressw. 1,70;
Brown v. Joddrell, 3 Carr. cSf Fayne, 30: Newland on Contracts ch. 1. p. 15 to 21. The
subject is a good deal discussed by Mr. Justice Blaekstonc, in his Commentaries, who
does not attempt to disguise its gross injustice, (2 Black. Comm. 191, 292.) It is fully
discussed by Mr. Fonblanque in his learned notes, (1 Fonbl. Eq. B. 1 ch. 2. § 1 and notes
{a) to (A:), and by Lord Coke in his commentary on Littleton, {Co. Lit. 247. a. and b.)
who adheres firinly to it as a maxim in the conmion law. In America this maxim has
not been of universal adoption, in tiie State Courts, if indeed it has ever been recognized
as binding in any of tiic Courts of Comn>on Law. See Somes v. Skinner, 16 Mans. R.
348; Webster V. Woodford, 3 Day, R. 90-100; Mitchdl v. Kin^inan, 5 Fick. R. 431,
In modern times, tlie English C^ouits of Jiaw seem to be disposed, as far as possible, to
escajie from the maxim. Ball v. Maunin,3 Bli^h. R. (new series) 1. And even in Eng-
land, although the party himself could not set aside his own act, yet the King as having
the general custody of idiots and lun>ili<;s, mii^ht by l)is attornty general, on a bill set
aside the same acts. Bullcr, N. I'rins, 172 ; 1 Story's Eq. Jur. § 255, note (4); 2 (Jreenl.
Ev. § 369; 3 Bucari's Ah. Idiots and Lunatics, V.
The ancient rule of the common law must now be considered as entirely exploded.
HISTORIA PLACITORUM CORON.gi:. _ 30
organs; and as it comes from several canses, so it is of several kinds
ordeo:rees ; which as to the purpose in hand may be thus distributed :
1. There is a partial insanity of mind ; and 2. a total insanity.
The former is either in respect to things quoad hoc vel illud insa-
nire; some persons, that liave a competent use of reason in respect of
some subjects, are yet under a particular dementia in respect of some
particular discourses, subjects, or applications; or else it is partial in
respect of degrees: and this is the condition of v^ry many, especially
melancholy persons, who for the most part discover their defect in
excessive fears and griefs, and yet are not wholly destitute of the use
of reason; and this partial insanity seems not to excuse them in the
committing of any offence for its matter capital; for doubtless most
persons that are felons of themselves, and others are under a degree
of partial insanity, when they commit these offences: it is very diffi-
cult to define the indivisble line tliat divides perfect and partial in-
sanity; but it must rest upon circumstances duly to be weighed and
considered both by the judge and jury, lest on the one side there
be a kind of inhumanity towards the defects of human nature, or on
the other side too great an indulgence given to great crimes: the best
measure that I can think of is this ; such a person as labouring under
melancholy distempers hath yet ordinarily as great understanding, as
ordinarily a child of fourteen years hath, is such a person as may be
guilty of treason or felony.
Again, a total alienation of the mind, or perfect madness; this ex-
cuseth from the guilt of felony and treason :(<:/) de qiiibus infra.
This is that, which in my lord Cuke's Pleas of the Crown, p. 6. is
called by him absolute madness, and total deprivation of memory.
Again, this accidental dementia, whether total or partial,
is distinguished into that which is permanent or fixed, and [ 3i ]]
that which is interpolated, and by certain periods and vicis-
situdes: the former is phrenesis or madness; the latter is that, which
is usually called lunacy, for the moon hath a great influence in all
diseases of the-brain, especially in this kind of dementia; such persons
commonly in the full and change of the moon, especially about the
equinoxes and summer solstice, are usually in the height of their dis-
temper ; and therefore crimes committed by them in such their distem-
pers are under the same judgment as those whereof we have before
spoken, namely, according to the measure or degree of their distem-
per ; the person that is absolutely mad for a day, killino; a man in tliat
distemper, is equally not guilty, as if he were mad without intermis-
sion. But such persons as have their lucid intervals, (which ordi-
narily hap[)ens between the full and change of the moon) in such in-
tervals have usually at least a competent use of reason, and crimes
committed by them in these intervals are of the same nature, and
subject to the same punishment, as if they had no such deficiency ;(e)
nay, the alienations and contracts made by them in such intervals are
obliging to their heirs and executors. (/)
(d) 21 //. 7. 31. b. (e) F. Corone, 324. (/) 4 Co. 125. a.
31 HISTORIA PLACITORUM CORON^E.
Again, tliis accidental demenlia, whether temporary or permanentj
is eitlier the more dangerous and pernicious, commonly axWed furor-y
rabies, mania, which commonly ariseth from adus.t choler, or the vio-
lent inflammation of the blood and spirits, which doth not only take
away the use of reason, but also superadds to the unhappy state of
the patient, rage, fury, and tempestuous violence ; or else it is such as
only takes away the use and exercise of reason, leaving the person
otiierwise rarely noxious, such as is a deep delirium, stiijjo7\ memory
quite lost, the phantasy quite broken, or extremely disordered. And
as to criminals these dementes are both in the same rank; if they are
totally deprived of the use of reason, they cannot be guilty ordinarily
of capital otfences, for they have not the use of understand-
[ 32 ] ing, and act not as reasonable creatures, but their actions
are in eflect in the condition of brutes. (^)
III. The third sort of dementia is that, whicli is dementia affec-'
tata, namely drunkenness.lo^^ This vice doth deprive men of the use
(g-) Braci, 420. h. F. Corone, 1^3, 351.
[3] With regard to drunkenness, it is now settled that a man cannot avail himself of
his own gross misconduct and vicious acts, to shelter himself from the legal conseriuen-
ces of crime. But to make him criminally responsible, the act must take place and be
the immedinte result of the fit of intoxication, and while it lasts; and not tlie result of
insanity remotely occasioned by previous habits of gross indulgence in spirituous liquors.
The law looks to the immediate, and not to the remote cause; to the actual state of tho
party, and not to the causes which remotely produced it. 2 Gieenl. onEv. § 374. Drunken-
ness, it was said in an early case, can never be received as a ground to excuse or palliate
an offence: this is not merely the opinion of a speculative philosopher, the argument of
counsel, or the obiter dictum of a single judge, but it is a sound and long established
maxim of judicial policy, from wiiich perhaps a single dissenting voice cannot be found.
But if no other authority could be adduced, the uniform decisions of our own Courts from
the first establishment of the government, would constitute it now a part of the coinmua
la.w of the land. Wharton''s Am. Crim. Law, 13, 14 ; 2 Rice^s Dig. Tit. Murder and Man-
slaughter, p. 105; 1 Story's Eq. Jur. § 230, 231, and cases there cited in notes, which,
though mostly civil cases, are still valuable for the analogies in principle there to be found.
" If a person that is drunk kills another, this shall be felony, and he shall be hanged
for it, and yet he did it through ignorance, for when he was drunk he had no understand-
ing or memory; but inasmuch as that ignorance was occasioned by his own act and
folly, and he might have avoided it, he shall not be privileged thereby. And Aristotle
says, such a man deserves double punishment, because he has doubly offended, viz: in
being drunk to the evil example of others, and in committing the crime of homicide."
Per I'oUard, Serg., arguendo in Reniger v. Fogossa, I'lowd. R. 19 ; Beverlei/s CasCy 4
Rep. 125.
" The prisoner's being intoxicated docs not alter the nature of the offence. If a man
chooses to get drunk, it is his own voluntary act; it is very diifercnt from a madness
•which is not caused by any act of the person. That voluntary sj)ocies of madness which
it is in tlic party's power to abstain from, he must answer for." Per Alderson, B., in Rex
\.]\lealdn,l C.&; P.2[n. ~
"If a nian makes himself voluntarily drunk, that is no excuse for any crime be nia'y
commit whilst he is so; he must take the conscqilence of his own voluntary act, or most
crimes would otherwise go unpunished. But drunkenness may be taken into considera-
tion in cases where what the law deems suHicient provocation has been given, because
the question is, in such cases, wiiethcr the fatal act is to be attributed to the paAsion of
anger excited by the previous provocation, and that passion is more easily excitable in a
person when in a state of intoxication than when be is sober. So, when the question
is, whether words have been uttered vv'ith a deliberate purpose, or are merely low and
idle expressions, the drunkenness of the person uttering them is ])roner to be considered.
But if there is really a previous determination to resent a slight affront in a barbarous
HISTORIA PLACITORUM CORON.E. 32
of reason, and puts many men into a perfect, but temporary phrenzy;
and-therefore, according to some Civilians, (/^) such a person comniit-
ing fiojnicide sliall not be punished simply for the crime of homicide,
but shall suifer for his drunkenness answerable to ttie nature of the
(A) Bartholinus and others. See Covarruvias, Tom, 1. p. 557. in relect. ad Clem. Si
furiosus. Far. iii. §. 3. ^- 4.
manner, the state of drunkenness in which the prisoner was, oug-htnot to be regarded, for
it would furnish no excuse." Per Parke, B., in Rex v. Thomas, 1 C. ^ P. 820.
" It is a maxim of law, that, if a man gets himself intoxicated, he is liable to tlie con-
sequences, and is not excusable on account of any crime he may commit when infuriated
by liquor, provided he was previously in a fit state of reason to know right from wrong.
If, indeed, the infuriated state at which he arrives should continue and become a lasting
malady, then he is not amenable." Per Holroyd, J. in Burrom^s Case, 1 Lew. C. C. 75.
"If either the insanity has supervened from drinking, without the panel's having been
aware that such an indulgence in his case leads to such a consequence, or if it has arisen
from the combination of drinking, with a half crazy or infirm state of mind, or a previous
wound, or illness which rendered spirits fatal to his intellect, to a degree unusual in otlier
men, or which could not have been anticipated, it seems inhuman to visit him with the
c.\treme punishment which was suitable in the other ease.'"' In such a case, the proper
course is to convict; but in consideration of the degree of infirmity proved, recommend
to the royal mercy." Alison's Princ. of the Crim. Law of Scotland, 654, quoted in Gui/s
Med. Jur. 277. Moreover there seems to be little doubt, that in these cases, the occa-
sional thirst for spirituous drinks, is, itself, but one of the symptoms or effects of the dis-
eased condition of the brain, as we see it occurring in persons who are not habitually in-
temperate, and who even abstain for weeks or months from all use of intoxicating liquors.-
If this be so, which we think none will dispute, then the intoxication itself is but an
accidental and involuntary consequence of a maniacal state of the mind, depending on
cerebral disorder, and can, by no means, impart a character of criminality to any action
to which it may give rise. Guy's Med. Jur. 217 ; Ray on Insanity, c. 25.
The following cases are given by the American Editor of Guy, (Dr. Lee) in a note to
page 277, above cited.
I. N. M. Thomas was tried May 13, 1840, for the murder o? Hallet Greenman, at Flo-
rida, Montgomery Co., N. Y., Nov. 24, 183D. The homicide was committed during a fit
of intoxication, and the prisoner was found guilty. The Judges of the Supreme Court
and the Attorney General certified to the legality of the conviction and the sufficiency of
the evidence. The sentence was commuted to imprisonment for life.
II. John Smock was tried in Dec. 1839, for the murder of his wife in the city of New
York, Tuesday, June 25, 1839. They were both very intemperate, and in a fit of drunk-
enness the wound was inflicted, of which she died, a few days aftqr. The physician of
the city prison testified that he was labouring under delirium tremens at the time. He
was found guilty, with a recommendation to mercy; in accordance with which the sen-
tence was commuted to imprisonment for life.
III. Robert Miller was tried in Oct. 1839, for the murder of Barney Leddy, at Utica,
April, 1839. On the trial it was proved that the killing grew out of a drunken quarrel
and light, (without previous animosity,) brought on by a jug of liquor which the deceased
brought to Miller's house. The accused was convicted and hung.
IV. Jabtz Fuller was tried in March, 1840, for the murder of his wife at Somerstoicn,
Westchester Co., May 26, 1839. They were both very intemperate, and in a fit of in.
toxication, prompted by jealousy, he injured her so severely b}^ stamping upon her, that
she died four days afterward from the effect of her bruises. It appeared from the testi-
mony, that he was of intemperate habits, and quick tempered; but when sober, of a civil
and quiet demeanour. He was convicted, and hung. May 22, 1840.
V. Johri Johnson was tried in AW. 1840, for the murder of his wife at Buffalo, Aug.
19, 1840. It was proved on the trial that he was much intoxicated on the day of the
murder, though several witnesses gave him a good character, as a quiet and peaceable
man, industrious and trusty. He was convicted and hung on the 19th of June, 1841.
The law will be found fiilly discussed in the following cases.
Perm v. McFall, Add. 257. U. S. v. Drew, 5 Mason R. 29, 30. 3 Am. Jur. 7. S. C.
32 HISTORIA PLACITORUM C0R0NJ5:.
crime occasioned thereby; so tiiat yet the formal cause of his punish-
ment is rather the drunkenness, than the crime committed in it: but
by the laws of England such a person (^■) shall have no privilege by
this voluntary contracted madness, but shall have the same judg-
ment as if he were in his right senses. Plowd. 19. a. Crompt. Just.
29. a.
But yet there seems to be two allays to be allowed in this case.
1. That if a person by the unskilfulness of his physician, or by the
contiivance of his enemies^ eat or drink such a thing as causeth such
a temporary or permanent phrenzy,as aconituni ox nux vomica,\\\\s
puts him into the same condition, in reference to crimes, as any other
phrenzy, and equally excuseth him.
2. Tliat although ihe simplex phrenzy occasioned zmwef/Zc/e/y by-
drunkenness excuse not in criminals, yet if by one or more such prac-
tices, an habitual or fixed phrenzy be caused, though this madness
was contracted by the vice and will of the party, yet this habitual
and fixed phrenzy thereby caused puts the man into the same condi-
tion in relation to criajes, as if the same were. contracted involuntarily
at first.
Now touching the trial of this incapacity, and who shall be ad-
judged in such a degree thereof to excuse from the guilt of capital
offences, this is a matter of great difficulty, partly from the easiness
of counterfeiting this disability, when it is to excuse a nocent, and
partly from the variety of the degrees of this infirmity,
[ 33 ] whereof some are sufficient, and some are insufficient to ex-
cuse persons in capital offences.
Yet the law of England hath afforded the best method of trial,
that is possible, of this and all other matters of fact, namely, by a jury
of twelve men all concurring in the same judgment, by the testimony
(0 4 Co. 125. a.
l^ennet v. The Slate, Mart. Sf Yer<r. 136, 137. Cornwell v. The State, Mart. S( Yerg. 155.
l59. Per Crabb, J. delivering' tiie majority opinion of the "S. C. of Tennessee. The
State V. Toohey, cited from MS. Dec. 1S19, 2 Rice's S. C. Dig., Tit. Murder & Man-
slaughter, p. 104, 105. The State v. Turner, 1 Ohio Rep. 29,30. TIte State v. Thompson,
Id. 617. 622. 625. Burroughs v. Rirhman, 1 Green's N. J. Rep. 238. John Burrow's
Cuse, 1 Lewin C. C. 15. Per Holroyil, J. Rennie's Case, Id. 76. Per Uulroi/d, J, Mar.
shaWs Case, Id. 76. Per Parke, J. lioodier's Case, Id. 76. Per Parke, J. Rex v. Carroll,
7 Ciirr 4' Payne, 145. Per Park 6f Littledale, J. J. overruling Rex v. Gundlvy, 1 Russ. on
C. S^ M. 8. 2iZ Ed. Rex v. Meakin, 7 Carr Sf Payne, 297. Per Aldcrson, B. Rex v. Tho.
mas, M. 817. Per Parke, B. Reis. v. Cruse, S Id. 546. Per Palteson, J. Pearson's Case,
^ Lewin C. C. 144. William McDnnough's Case, Ray on Insanity, § 398. 2d ed. Va~
teld's Case, Id. § 299. 2d Ed. Wilson's Case, Id. § 405. M Ed. Budsell's Case, Id.
§ 406. 2d ed. Western Jour. Med. Science, Vol. 3. Thiel's Case, Ray on Insanity^
\w.).2ded. AI)hotl'sCase,Id.^'il.G.2ded.
For an ample discussion of the criminal responsibility of the drunkard, the reader is
referred to the Treatise of Dr. Ifay (of Maine) on the Medical Jurisprudence of Insanity,
c. 24, 25. § 375 to § 418. Mucnish's Anatomy of Drunkenness (passim.) Hojfbauer's Psy-
colo'jie, § 195. Oiorget Des Maladies Mentalia, Vol. 2. p. 80, cited by Dr. liay. Mitler.
marie on the Effect of Drunkenness upon Criminal Responsibiliti/, § VI. VII. VIll. IX.
American Jar. Vol. 3. p. 7, 9. /(/. ^'ul. 21. p. 6. Id. Puley's Mur. Phil. B. IV. c. 2.
HISTORIA PLACITORUM CORONA. 33
of witnesses vivd voce in the presence of the judge and jury, and by
the inspection and direction of the judge.
There are two sorts of trials of idiocy, madness, or lunacy; the
first, in order to the commitment or custody of the person and his
estate, which belongs to the king, either to his own use and benefit,
as in case of idiocy; or to the use of the party, in case of accidental
madness or lunacy; and in order hereunto there issues a writ (A-) or
commission to the sheriff or escheator, or particular commissioners,
both by their own inspection and by inquisition to inquire, and return
their inquisition into the Chancery; and thereupon a grant or com-
mitment of the party and his estate ensues ; and in case the party or
his friends find themselves injured by the finding him a lunatic or
idiot, a special writ may issue to bring the party before the chancel-
lor, or before the king to be inspected. Vide Fitz. N. B. 233. (/)
But this concerns not the purpose in hand ; for whether the party
that is supposed to commit a capital offence be thus found an idiot,
madman or lunatic, or not, yet if really he be such, he shall have
the privilege of his idiocy, lunacy, or madness, to excuse him in
capitals.
Secondly therefore, the trial of the incapacity of a party indicted
or appealed of a capital offence is, upon his plea of not guilty, by the
jury upon his arraignment, who are to inquire thereupon touching
such incapacity of the prisoner, and whether it be to such a degree,
as may excuse him from the guilt of a capital offence. (m)
In presumption of law, every person of the age of discretion is pre-
sumed of sune memory, unless the contrary be proved ; and this
holds as well in cases civil as criminal.
Again, if a man be a lunatic, and hath his hicida inter-
valla, and this be sufficiently proved, yet the law presumes [ 34 ]|
the acts or offences of such a person to be committed in those
intervals, wherein he hath the use of reason, unless by circumstances
or evidences it appears they were committed in the time of his dis-
temper; and this also holds in civils as well as in criminals.
And although in civil cases, he that goes about to allege an act
done in the time of lunacy, must strictly prove it so done, yet in
criminal cases (where the court is to be thus far of counsel with the
prisoner, as to assist him in matters of law and the true stating of the
fact) if a lunatic be indicted of a capital crime, and this appears to
the court, the witnesses to prove the fact may and must also be
examined, whether the prisoner were under actual lunacy at the time
of the offence committed.
A man that is surdus <^' mntns a nativitate, is in presumption of
law an idiot, and the rather, because he hath no possibility to under-
stand what is forbidden by law to be done, or under what penal-
ties :(/i) but if it can appear, that he hath the use of understanding,
which many of that condition discover by signs to a very great mea-
(Jc) Sec Stamf. Preronr. 33. 6. (Z) N. Edit. 517.
(m) S-ivil. oU. 1. And. 107.
{n) Vide Leg. Alfredi, l.li. B. Corone 101 Sf 217.
34 HISTORY PLACITORUM CORONA.
sure, then he may be tried, and isnffer judgment and execution,
though great caution is to be used therein. (o)[4]
I come now to apply what lias been said to the various natures of
capital crimes.
Jf a man in his sound memory commits a capital offence, and before
his arraignment he becomes absolutely mad, he ought not by law to
be arraigned during such his phrenzy, but be remitted to prison unti'I
that incapacity be removed; the reason is because he cannot advis-
edly plead to the indictment; and this holds as well in cases
[ 35 ] of treason, as felony, even though the delinquent in his sound
mind were examined, and confessed the otfence before iiis
arraignment: and this appears by the statute of 33 H. 8. cap. 20.
which enacted a trial in case of treason after examination in the
absence of the party; but this statute stands repealed by the statute
of 1 4' 2 Phil. 4' Mar. cap. 10 Co. P. C.p. 6. And if such person
after his plea, and before his trial, become of non sane memory, he
shall not be tried; or, if after his trial he becomes of 7ion sane
memory he shall not receive judgment; or, if after judgment he be-
comes oi non sane memory, his execution shall be spared; for were
he of sound memory, he might allege somewhat in stay of judgment
or execution. Co. P. C. 4.{p)
(o) According to 43 Assis. pi. 30. and 8 H. 4. 2, if a prisoner stands mute, it shall be
inquired, wlietlier it be wilful or by the act of God; from whence Crompton infers, that
if it be by the act of God he shall not suffer. Crompt. Just. 29. a. But if one who is both
deaf and dumb, may discover by signs that he hath the use of understanding, much more
may one, who is only dumb, and consequently may be guilty of felony, sed qucere, how
lie shall be arraigned.
(j}) See Sir John Ha7vles''s Remarks on Bateman's trial. State Trials, Vol. 4. p. 205.
[4] It may be observed that from the humane exertions of many ingenious and able
persons, and from the extensive charitable institutions for the instruction of the deaf and
dumb, many of tiicse unfortunate people have at the present day a very perfect know-
ledge of right and wrong. In Steel^s case, 1 Leach, 451, a prisoner wlio could not hear
and could not be prevailed upon to plead, was found mute by the visitation of God, and
then tried, found guilty, and sentenced to be transported. And in Jones's case, 1 Leach,
102, when the prisoner who was indicted for stealing in a dwelling house on being put to
the Bar appeared to be deaf and dumb and the jury found a verdict, " Mute by the visita;-
tion of God ;" after wliicli a woman was examined upon her oatii to the fact of her being
able to make him understand what otiiers said, which she said slic could do by ilieans of
signs, such prisoner was arraigned, tried and convicted of the simple larceny. The
proper course in such cases is, I. To swear a jury to determine whether tiie prisoner be
mute of malice or by the visitation of God. II. Whether he be able to jjlead. III. Whether
he be sane or not; on which issue the question is, whetlier lie is of sufficient intellect to
comprehend the course of the proceedings on the trial so as to be able to make a proper
defence. Rrx. v. Pritchard, 7. C. Sf P. 303. Rex. v. Dyson, Id. 305. n. (a) Per Parke, B.
1 Lewin, C. C. R. M.S. C. In Rex. v. Pritchard, the jury were sworn on each of the
tliree issues separately. See Rex. v. Dyson, for tlic form of tlic oath administered to the
interpreter. See Thompsoji's case, 2 Lrwin's, C. C. R. 137, where tlie prisoner being
deaf and dumb, but able to read, llie indictment was handed to him with the usual ques-
tions written uponpaper and lie wrote his plea on paper. Tlie juror's names were then
lianded to him witli the (piestion, " Whether he objected to any of tlicm ?" and lie wrote
for answer "No." The Judge's note of the evidence was lianded to him and lie was aslied
in writing if iiC had any (juestions to put. 1 Russ. on Vriiiics 7. votr. Snyder v. Nations,
5 Illucf. R. 2!)5. I (,'rcen. on Ev. ^ 3(if). The Pi-ojib v. M'Gee, 1 Denios, N. Y. Rep. 19.
Cum. V. Hill, 14. Mass. R. 207. The Stale v. Dcwolf. 8 Conn. R. 93.
HISTORIA PLACITORUM CORON^E. 35
But because there may be great fraud in this matter, yet if the
crime be notorious, as treason or murder^ the judge before such
respite of trial or judgment may do well to impanel a jury to inquire
ex officio touching such insanity, and whether it be real or counter-
feit.
If a person of non saiie mcinory commit homicide during such his
insanity, and continue so till the tune of his- arraignment, such person
shall neither be arraigned nor tried, but remitted to gaol, there to
remain in expectation of the King's grace to pardon him. 26 ,dss. 27.
3 E. 3. Corone 351.
But it seems in such a case it is prudence to swear an inquest ex
officio, to inquire touching his madness, whether it was feigned;
and thus it was done in the case of 3 E. 3. and in Somervile^s case,
Anderson's Rep. par. 1 n. 154. But in case a man in a phrenzy
happen by some oversight, or by means of the gaoler to plead to his
indictment, and is put upwi his trial, and it appears to the court upon
his trial, that he is mad, the judge in discretion may discharge the
jury of him, and remit him to gaol to be tried after ihe recovery of
his understanding, especially in case any doubt appear upon the
evidence touching the guilt of the fact, and this in favorem vitx;
and if there be no colour of evidence to prove him guilty, or if there
be a pregnant evidence to prove his insanity at the time of the fact
committed, then upon the same favour of life and liberty it
is fit it should be proceeded in the trial, in order to his ac- f 36 ]]
quittal and enlargement. If a person during his insanity
commit homicide or petit treason, and recover his understanding,
and being indicted and arraigned for the same, pleads not guilty, he
ought to be acquitted; for by reason of his incapacity he cannot act
fclleo animo. 12 H. 3. Doiver 183. Forfeiture 33. 21. H. 7. 31. b. il
ulera quite, that is, shall be found not guilty.
And it is all one, whether the phrenzy be fixed and permanent, or
whether it were temf)orary by force of any disease, if the fact were
committed while the party was under that distemper.
In the year 166S, at Aylesbury, a married woman of good reputa-
tion being delivered of a child, and having not slept many nights fell
into a temporary phrenzy, and killed her infant in the absence of anv
company; but company coming in, she told them she had killed her
infant, and there it lay; she was brought to gaol presently, and after
some sleep she recovered her understanding, but marvelled liow or
why she came thither ; she was indicted for murder, and upon her
trial the whole matter appearing, it was left to the jury with this
du'ection, that if it did appear, that she had any use of reason when
she did it, they were to find her guilty; but if they found her under
a phrenzy, though by reason of her late delivery and want of sleep,
they should acquit her ; that had there been any occasion to move
her to this fact, as to hide her shame, which is ordinarily the case
with such as are delivered of bastard children and destroy them; or
if there had been jealousy in her husband, that the child had been
none of his ; or if she had hid the infant, or denied the fact, these
VOL. I. — 5
36 HISTORIA PLACITORUM CORONA.
had been evidences that the phrenzy was counterfeit; but none of
these appearing, and the honest}^ and virtuous deportment of the
woman in her health being known to the jury, and many circum-
stances of insanity appearing, the jury found her not guilty, to the
satisfaction of all that heard it.
Touching the great crime of treason regularly the same is to be
sard, as in case of homicide, such a phrenzy or insanity as excuseth
from the guilt of the one, excuseth from the guilt of th^ other: the
reason is the same ; he that cannot act felonice or animo felonico
cannot act proditorie, for being under a full alienation of
[] 37 J mind, he acts uoi per elect ioncm or intentionem. This ap-
pears by the statute of 33 H. 8. cap. 20. which, though it
enact, that a non compos mentis shall be tried for treason, yet it
expressly declareih, " That if any commit high treason, while they
are in good, whole, and perfect memory, and after examination be-
come non compos mentis and that it be certified by four of the
council, that at the time of the treason they were of good, sound,
and perfect memory, and then not mad, nor lunatic, and afterwards
became mad; then they shall proceed to trial:" which strongly
enforceth, that a treason cannot be committed by a madman, or
Junatic, during his lunacy.
And with this agrees my lord Coke, P. C. p. 6. in these words,
"He that is no7i compos ?nentis, and totally deprived of all com-
passings and imaginations, cannot commit liigh treason by compass-
ing or imagining the death of the king: for fnriosics solo furore
piiniler; but it must be an absolute madness, and a total depriva-
tion of memory."
This, though it be general, yet the same author tells us, 4 Rep. 124.
b. Beverly^s case, in these words, " Mes in ascun cases non compos
mentis poit committe hault treason, come si il tua, o\\ oiler a tuer le
roy." This is a safe exception, and I shall not question it, because
it tends so much to the safety of the king's person : but yet the same
author, P. C. p. 6. tells us, that though this was anciently thought to
be law, yet it is not so now ; for such a person as cannot compass
the death of the king by reason of Iiis insanity, cannot be guilty of
treason within the statute of 25 E. 3. And thus far concerning the
incapacity of idiocy, madness, and lunacy. [5]
[5] Insanity is a disease, which causes the patient wliile awake to mistake the phan-
toms and operations of itn agination for realiiies, wliich conscfiucntly become the motives
of'iiis discourse and actions, wiiilc at the time tliere is an absence of any bodily disorder
that can account for the phenomena.
Perhaps the best definition ot Insanity is in sir Alexander Critcliori's Commentaries, p.
165. Insane persons are arranged into classes.
1. Maniacs, who are under a j)hrenzy.
2. Lunatics, having lucid intervals.
3. Mklancholics, subject to constant depression.
4. Monomaniacs, under a delusion upon a particular subject.
.'). I)(.:mkntki), deprived of mind by grief, sickness, accidents, or old age. Chiitj/s
Mcilical Jurisprudence, 34.5.
Lord Coke says, "Many times the Latin word expresses the true meaning, and calletli
HISTORIA PLACITORUM CORONA. 37
htm not amens demens furiosus, lunatics fntuus stultus, or the like, but non compoa
mentis." Co, Lift. 247, a,
Bracton says, "ftiriosus non inielligit quod agit et animo et ratione caret, et non mul-
tutn distat a brutis." Lib. 5, 420, b.
Lord Hale observes correctly, {ante 29, 30,) that" it is very difficult to define the invisi.
ble line that divides perfect and partial insanity, but it mubt rest on circumstances duly
to be weighed and considered by judge and jury, lest on tiie one side there be a kind of
inhumanity towards defects of human nature, or, on the other side, too great an indul-
gence given to crimes."
" The most difficult cases," said Erskine in HadfieWs trial, " are where reason is not
wholly driven from her seat, but distraction sits down upon it along with lier, holds her
trembling upon it, and frightens her from her propriety. Such patients are victims to
delusion of the most alarming description, wliich so overpowers the faculties and usurps
so firmly the place of realities, as not to be dislodged and shaken by the organs of per-
ception and sense. Delusion, therefore, where there is no phrenzy or raving madness, is
the true character of insanity, and where it cannot be predicted of a man standing for
life or death for a crime, he ouglit not to be acquitted."
Some rules about freeing a hmatic from criminal responsibility may be found in 1 Col-
linson on Lunacy, 473, 474. 477.
There must be an absolute dispossession of the free and natural agency of the human
mind. The prisoner must have been incapable of distinguishing between good and evil,
and of compreTiending the nature of what he was doing. Being a lunatic before or after
the act, is not enouglr; his madness must be complete and absolute at the moment when
the offence was committed.
Cooper expresses the same rule. " The insanity must be distinct and manifest at the
time the crime was committed." Cooper''s Med. Jur. 381.
So Male says. Where no insanity is proved, and there has been none previously ex-
isting, wliere the delinquent has acted from facts and existing circumstances, the law
does not protect him. Cooper''s Med. Jur. 255.
Shelford, froma number of adjudged cases, thus deduces the rule of law. If a person
liable to partial insanity, which only relates to particular subjects or notions upon which
he talks and acts like a madman, still has as much reason as enables him to distinguish
between right and wrong, he will be liable to that punishment wliich the law attaches
to his crime. Shelford on Lunacy, 458.
He cites lord Ferrer^s case, 10 HowelVs Slate Trials, 947; Arnold''s case, 16 Howell's
State Trials, 764; Parker''s case, 1 Collinson on Lunacy, 477; Bellinghani's case, 1
Collinson on Lunacy, 636; Oford's case, 5 Carr and Payne, 168; Bowler''s case, 1 Col.
lin^on, 673, and 54 Annual Register, 309.
Sir John Milford said, in Hadjield's trial, 27 HowelVs Slate Trials, 1290, "because there
is a natural impression on the mind of man of the distinction between good and evil,
which never entirely loses hold of the mind whilst the mind has any capacity whatever
to exert itself, nothing but total and absolute debility deprives the mind of any man of
that. If conscious of the act, as the result of design and contrivance, and of tlie conse-
qucnces of the act, is there not a moral sense which indicates criminal responsibility/"
"The true criterion of insanity," said sir John Nichols, '' is 'delusion," and he cites
Locke on the Human Understanding, Book 2, ch. 11, § 13. In Dew v. Clark, 3 Addams
90, 91. Dementatioh arising from unruly passion, is no excuse.
Mr. Chitiy {p. 345) thus expresses the rule of law : '' The true test of insanity, where
there is no phrenzy or raving, is the absence or presence of delusion, and delusion exists
whenever an individual once conceives something extravagant to exist which has no
existence, and when he is incapable of being reasoned out of that absurd conception.
In criminal cases, therefore, the question is simple, adapted to tiie comprehension of
every juryman, "whether, at the^ time the act was committed, the prisoner was incapa-
ble of judging between right and wrong, and did not know that the particular act was
an offence against the laws of God and nature."
He adds, "The law presumes the competency, and therefore the question is always
presented to a jury upon the negative, which must be established on the part of the
prisoner; the burthen of proof is on him."
Mr. Chitty is entirely supported by I\Ir. Erskine, whom he quotes, and the uniform
tenor of authoritative decisions shows that no better rule than that which Erskine laid
down in HadfieUVs trial has been framed. *
To deliver a lunatic from responsibility to criminal justice, said he, above all, in
37 HISTORIA PLACITORUM CORONA.
a case of atrocity, the relation between the disease and the act should be apparent, the
delusion and the act must be connected. I cannot allow the protection of insanity
to a man who exhibits only violent passions and malignunt resentments acting upon
real circumstances, who is impelled to evil from no morbid delusion, but who proceeds
upon the ordinary perceptions of the mind. See Parker arguendo in Roger^s Trial,
16-19.
" In criminal cases, in order to absolve the party from gfuilt, a higher degree of insanity
must be shown than would be sufficient to discliargc him from the obligations of his con-
tracts. In these cases the rule of law is understood , to be this; that 'a man is not to be
excused from responsibility, if he has capacity and reason sufficient to enable him to
distinguish between right and wrong, as to the particular act he is then doing ; a know-
ledge and consciousness that the act he is doing is wrong and criminal, and will subject
liiwi to punishment. In order to be responsible he must have sufficient power of memory
to recollect the relation in which he stands to others, and in which others stand to him;
that the act he is doing is contrary to the plain dictates of justice, and right injurious to
others, and a violation of the dictates of duty. On the contrary, although he maybe
labouring under partial insanity, if he still understands the nature and character of his
act and its consequences, if he has a knowledge that it is wrong and criminal, and a
mental power sufficient to apply that knowledge to his own case, and to know tliat if he
does the act he will do wrong and receive punishment, such partial insanity is not suffi-
cient to exempt him from responsibility for criminal acts. If then it is proved to the
satisfaction of the jury, that tlie mind of the accused was in a diseased and \insound state,
the question will be, whether the disease existed to so high a degree, that for the time
being, it overwhelmed the reason, conscience, and judgment, and whether the prisoner
in committing the homicide, acted from an irresistible and uncontrolable impulse; if so,
then the act was not the act of a voluntary agent, but the involuntary act of the body
without the concurrence of a mind directing it." 2 Greenl. on Evid. § 372.
The question of insanjty in a prisoner is a question for the jury, and ought to be
clearly made out, in order to exempt the party from punishment. Rex v. Arnold, 1
Russ. C. Sf M. 9.
To justify the aquittal of a prisoner indicted for murder, on the ground' of*insanity, the
jury must be satisfied that he was incapable of judging between right and wrong; and
that, at the time of committing the act, he did not consider that it was an otFcnce against
the laws of God and nature. Rex v. Offord, 5 Car. i^ /'. 168.
If, to an indictment for treason for attempting the life ofthe sovereign^ by shooting at
the Queen, the defence be insanity, the' question for the jury will be, whether the'
prisoner was labouring under that species of insanity, which satisfies them that he was
quite unaware ofthe nature, character, and consequences ofthe act he was committing;
or in other words, whether he was under the influence of a diseased mind, and was
really unconscious at the time he was committing tlie act, that it was a crime. If the
jury in such a case are of opinion that the prisoner did not in fact do all that the law
deems essential to constitute the offence cliarged, they must find him not guilty generally ;
and the Court have no power to order his detention, under the 39 & 40 Geo. 3. c. 94, s. 2,
although the jury should be clearly of opinion, that the prisoner was in fact insane.
Such a state of circumstances appearing to be a casus omissus in the act. Reg. v. Oxford,
9 Car. Sf P. 525.
If on a trial the defence is insanity, a witness of medical skill may be asked whether
such and such appearances, proved by otiier witnesses, are in his judgment symptonjs of
insanity. Rex v. Wright, R. Sf R. C. C. 456.
Wiicre a prisoner's defence is insanity, a medical man who has heard the trial, may
be asked whether the facts proved, show symptoms of insanity. Rex v. Searle, I M, Sf
Roh. 75.
The prisoner was indicted for shooting at his wife with intent to murder her, &,c., and
was defended by counsel, who set U[> for him the defence of insanity. The prisoner,
however, objected to such a defence, asserting that he was not insane ; and he was allowed
by the judge to suggest questions, to be put by his lordshi|) to the witnesses for the pro-
secution, to negative the supposition that he was insane; and the learned judge also, at
the request ofthe priscmer, allowed additional witnesses to be called on his behalf for tlie
same purpose. Tiiey, however, failed in showing that the dcfince was an incorrect one ;
and on the contrary, their evidence tended to establish it, more clearly, and the prisoner,
H'as acquitted on the ground of insanity. Reg. v, Piarce, 9 Car. Sf P, 667.
A party having been indicted for a misdemeanor, in uttering seditious words, and upon
HISTORIA PLACITORUM CORONiE. 37
his arrai.inmcnt refusing to plead, and showing- symptoms of insanity ; and an inquest
being for'tliwith takc-n under 39 & 40 Geo. 3, c. 1)4, s. 2, to try whetlicr he was insane or
not: — Held, first, that the jury might form their own judgment of the present state of
the prisoner's mind, from his demeanor while the inquest was being taken ; and might
thereupon find him to be insane, without any evidence being given as to his present
state : — Seeondly, that upon the prisoner showing strong symptoms of insanity in Court
during the taking uf the inquest, it became unnecessary to ask him whether he would
cross-examine the witnesses, or would offer any remark on the evidence. Reg. v. Goode,
7 Ad. Sf E. 536.
A grand jury have no authority by law to ignore a bill for murder on the ground of
insanity; it is their duty to find the bill; otherwise the Court cannot order the detention
of the party during the pleasure of the crown either on arraignment or trial, under Utat.
3y & 40 Geo. 3, c. 94, ss. 1 & 2. Reg. v. Hodges, 8 Car. <^ P. 195.
In Massachusctls, when one indicted for murder would make no distinct plea, and
appeared to be deranged, a jury were empanelled to try whether he neglected to plead
wilfully, or by the act of God ; and on the finding of the jury that it was for the latter
reason, the court remanded him to jail. Commonwealth v. Braley, 1 Mass. 103.
"The great object of punishment by law, (said Chief Justice Shaw, of Massachusetts^
in Roger's case,) is to atford security to the community against crimes, by [>unishing
those who violate the laws; and this object is accomplished by holding out the fear of
punishment, as the certain consequence of such violation. Its effect is to present to the
minds of those who are tempted to commit crime, in order to some present gratification,
a strqng counteracting motive in the fear of punishment. But this object can only be
accomplished when such motive acts on an intelligent being capable of remembering
that the act about to be committed is wrong, contrary to duty, and such as in any well
ordered society would subject the offender to punishment. It might in some respects be
more accurate to say that the party thus acting under a temptation, must have memory
and intelligence to recollect and know that the act he is about to commit is a violation
of the l;nv of the land. But this mode of stating the rnle might lead to a mistake of
another kind, inasmuch as it would seem to hold up the idea, that before a man can be
justly punished, it must appear that he knew that the act was contrary to the law of the
land. But the law assumes that every man has knowledge of the laws prohibiting
crimes; an assumption not strictly true in fact, but necessary to the security of society,
and sulliciently near the truth for practical purposes. It is expressed by the well known
maxim, ignorantia legis neminem excusat — ignorance of the law cannot be pleaded as an
excuse for crime. The law assumes the existence of the power of conscience in all persons
of ordinary intelligence — a capacity to distinguish between right and wrong in reference
to particular actions: a sense of duty and of right. It may also be safely assumed that
every man of ordinary intelligence knows that the laws of society are so framed and
administered, as to prohibit and punish wrong acts — violation of duty towards others —
by penalties in some measure adapted to the nature and aggravation of the wrong and
injurious acts thus done. If, therefore, it happens to be true in any particular ease, that
a person tempted to commit a crime does not know that the particular act is contrary to
positive law, or what precise punishment the municipal law annexes to such act; yet, if
the act is palpably wrong in itself; if it be manifestly injurious to the rights of another,
as by destroying his life, maiming his person, taking away his property, breaking into
or burning his dwelling-house, and the like, there is no injustice in assuming that every
man knows that such acts are wrong, and must subject him to punishment by law; and,
therefore, it may be assumed for all practical purposes, and without injustice, that he
knows the act is contrary to law. This is the ground upon which tiie rule has been
Usually laid down by judges, when the question is whether a person has sutHcient men-
tal capacity to be amenable for the commission of a crime, that he must have sufficient
mental capacity to distinguish between right and wrong, as applied to the act he is about
to commit, and to be conscious that the act is wrong; instead of saying, that he must
have sufficient capacity to know that it is contrary to the law of the land, because this
power to distinguish between right and wrong as applied to the particular act — a power
which every human being, who is at the same time a moral agent and a subject of civil
government, is assumed to possess — is the medium by which tliC law assumes that he
knows that the same act which is a violation of high moral duty is also a violation of the
law of the land. Whereas, if it were stated that a person must have sufficient mental
capacity to know and understand that the act he is about committing is a violation of
the law of the land, it might lead to a wrong conclusion, and raise a doubt in regard to
37 HISTORIA PLACITORUM CORON.^.
persons igrnorant of tlie law. There is no doubt that many a man is held responsible for
crime, and that rightfully, who might not know that the act he was about committing
was contrary to tlie law of the land, otherwise than as a moral being he knows that it is
wrong — a violation of the dictates of his own natural sense of right and wrong.
To recur, then, to what has already been stated. In order that punishment may ope-
rate by way of example, to deter others from committing criminal acts when under
temptation to do so, by presenting a strong counteracting motive, the person tempted
must have memory and intelligence to know that the act he is about to commit is wrong,
to remember and understand, that if he commits the act he will be subject to the punish-
ment, and reason and will to enable hiin to compare, and choose between the supposed
advantage or gratification to be obtained by the criminal act, and the impunity from
punishment which he will secure by abstaining from it.
A person, therefore, in order to be punishable by law, or in order that his punishment
by law may operate as an example to deter others from committing criminal acts under
like circumstances, must have sufficient memory, intelligence, reason, and will, to enable
him to distinguish between right and wrong in regard to the particular act about to be
done, to know and understand that it will be wrong, and that he will deserve punishment
by commitiing it.
This is necessary on two grounds: 1st. To render it just and reasonable to inflict
punishment on the accused individual, and 2d. To render his punishment by way of
example, of any utility to deter others in like situations from doing similar acts, by hold-
ing up a counteracting motive in the dread of punishment which they can feel and com-
prehend.
With more immediate reference to the case, the Chief Justice proceeded as follows:
In order to constitute a crime, a man must have intelligence and capacity enough, to
have a criminal intent and purpose; and if his reason and mental powers are either so
deficient that he has no will, no conscience, or controlling mental power, or if through
the overwhelming violence of mental disease, his intellectual power is for the time oblite-
rated, he is not a responsible moral agent, and is not punishable for criminal acts. But
these are extremes easily distinguished, and not to be mistaken. The dillicully lies
between these extremes in the ease of partial insanity, where the mind may be clouded
and weakened, but not incapable of remembering, reasoning, and judging, or so per-
verted by insane delusion, as to act under false impressions and influences. In these
cases, the rule of law, as we understand it, is this: A man is not to be excused from
responsibility if he has capacity and reason sufficient to enable him to distinguish be-
tween right and wrong as to the particular act he is then doing, a knowledge and con-
sciousness that the act he is doing is wrong and criminal, and will subject him to punish-
ment. In order to be responsible, lie must have sufficient power of memory to recollect
the relation in which he stands to others, and in which others stand to him; that the act
he is doing is contrary to the plain dictates of justice and right, injurious to others, and
a violation of the dictates of duty. On the contrary, although he may be labouring under
partial insanity, if he still understands the nature and character of his act and its conse-
qucnces; if he has a knowledge that it is wrong and criminal, and a mental power suffi-
cient to a|iply that knowledge to his own case, and to know that if he does the act he
will do wrong and receive punishment, such partial insanity is not sufficient to exempt
him from responsibility for criminal acts. If, then, it is proved to the satisfaction of the
jury, that the mind of the accused was in a diseased and unsound state, the question will
be, whether the disease existed to so high a degree that for the time being it ovgrwlielmed
the reason, conscience, and judgment; and whether the prisoner committing the liomL-
cidc acted from an irresistible and uncontrollable impulse; if so, then the act was not the
act of a voluntary agent, but the involuntary act of the body without the concurrence of a
mind directing it. The character of the mental disease relied upon to excuse the
accused in this case, is partial insanity, consisting of melancholy, accompanied by delu-
sion. The conduct may be in many respects regular, the mind acute, and tlie conduct
a[)()arcntly governed by rules of propriety, and at the same time there may be insane
delusion, by which the niiiul is perverted. The most common in these cases is that of
monomania, where the mind broods over one idea, and cannot be reasoned out of it.
This may operate as an excuse for a criminal act in one of two modes. Either the delu.
sion is such that the |)erson under its influence has a real and firm belief of some fact,
not true in itself, but which if it were true, would excuse his act ; as where the belief is
that the party killed had an immediate design upon his lilc, and under that belief the
iasane man killed him in supposed self-defence. A common instance is where he fully
HISTORIA PLACITORUM CORONA. 37
t
believes that the act he is doing is done by the immediate command of God, and he acts
under the delusive, but sincere belief, that what he is doing is by the command of a supe-
rior power, which supercedes all liuman laws, and the laws of nature; or, 2d. This st;ite
of delusion indicates to an experienced person that the mind is in a diseased slate, that
the known tendency of that diseased s^tate of mind is to break out into sudden parox-
ysms of violence, venting itself into acts of homicide or other violent acts towards friend
or foe indiscriminately, so that although there was no previous symptoms and indications
of violeHce, yet the subsequent act connecting itself with the previous symptoms and
indications, will enable an experienced person to say that the outbreak was of such a
character, that for the time being it must have overborne memory and reason: that the
act was the result of the disease, and not of a mind capable of choosing: in short, that
it was tlie result of uncontrollable impulse, and not of a person acted- upon by motives,
and governed by the will." Roger's Trial, Boston, 1844, ^.273., Charge of Ch. Just. Shaw.
A case of great interest and importance has recently occurred in England, Reg. v.
McNaughton, 10 Clark Sf Fin. 210. In that case, the following questions were pro-
pounded to the judges of England by the House of Lords:
"1st. What is the law respecting alleged crimes committed by persons afflicted with
insane delusion in respect of one or more particular subjects or persons; as, for instance,
w^ere at the time of the commission of the alleged crime, the accused knew he was act-
ing contrary to law, but did the act complained of with a view, under the influence of
insane delusion, of redressing or avenging some supposed grievance or injury, or of pro-
ducing some supposed public benefit ?
"2d. What are the proper questions to be submitted to the jury, when a person alle-
ged to be afflicted with insane delusion respecting one or more particular subjects or
persons, is charged with the commission of a crime, (murder, for example,) and insanity
is set up as a defence?
" 3d. In what terms ought the question to be left the jury as to the prisoner's state of
mind at the time when the act was committed?
" 4th. If a person under an insane delusion as to existing facts, commits an offence in
consequence thereof, is he thereby excused?
"5th. Can a medical man, conversant with the disease of insanity, who never saw tlie
prisoner previous to the trial, but who was present during the whole trial and the exami-
nation of all the witnesses, be asked his opinion as to the state of the prisoner's mind at
the time of the commission of the alleged crime, or his opinion whether the prisoner was
conscious, at the time of doing the act, that he was acting contrary to law ; or whether
be was labouring under any or what delusion at the time?"
The joint opinion of all the judges, except Mr. Justice Maule, was delivered by Lord
Chief Justice Tindal, as follows: — " My Lords, her Majesty's Judges, with the exception
of Mr. Justice Maule, who has statpd his opinion to your Lordships, in answering the
qaestions proposed to them by your Lordship's House, think it right in the first place to
state that they have forborne entering into any particular discussion o])on these ques-
tions, from tlie extreme and almost insuperable difficulty of applying those answers to
cases in which the facts are brought judicially before them. The facts of each particular
case must of necessity present themselves with endless variety, and with every shade of
difference in each case, and it is their duty to declare the law upon each particular case
on facts proved before them, and after hearing argument of counsel thereon. Tiiey deem
it at once impracticable, and at the same time dangerous to the, administration of justice,
if it were practicable, to attempt to make minute applications of the principles involved
in the answers given them by your Lordships' questions; they have therelbre confined
their answers to the statements of that which they hold to be the law upon the abstract
questions proposed by your Lordships; and as they deem it unnecessary in this particu-
lar case to deliver their opinions seriatim, and as all concur in the same opinions, they
desire me to express such their unanimous opinion to your Lordships,
" In answer to the first question, assuming that your Lordships' inquiries are confined
to those persons who labour under such partial delusions only, and are not in other re-
spects insane, we are of opinion, that notwitlistanding the party accused did the act
complained of with a view under the influence of insane delusion, of redressing or aveng.
ing some supposed grievances or injury, or of producing some public benefit, he is,
nevertheless, punishable according to the nature of the crime comn)ittcd, if he knew at
tl»e time of committing such crime that he was acting contrary to law, — by which ex-
pression we understand your Lordships to mean, the law of the land. As the third and
Iburth questions appear to us to be more conveniently answered together, we have to
280980
37 HISTORIA PLACITORUM CORONA.
I
submit our opinion to be, tbat the jury ongfht to be told in all cases, that every man ia
presumed to be sane and to possess a sutHcient degree of reason, to be responsible fur his
crimes, until tiie contrary be proved to tlicir satistiiction; and that to establish a defence
on the ground of insanity, it must be clearly proved, that at the time of committing the
act, the party accused was labouring under such, a defect of reason from disease ot the
mind as nol to know the nature and quality of the act he was doing, or if he did know
it, ttiat he did not know that lie was doing what was wrong. The mode of putting
the latter part of the question to the jury on tliese occasions has generally been, whether
the accused at the time of doing the act, knew the difference between right and wrong ;
which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we
conceive, so accurate when put generally and in tlie abstract, as when put with reference
to the party's knowledge of right and wrong in respect to the very act with which he is
ciiarged. If the question were to be put as to the knowledge of the accused solely and
exclusively with reference to the law of the land, it might tend to confound tlie jury, by
inducing them to believe that an actual knowledge of the law was essential in order to
lead to a conviction ; whereas the law is administered upon the principle that every one
must be taken conclusively to know it, without proof that he does know it. If the ac-
cused were conscious thai the act was one which he ought not to do, and if that act was
at the same time contrary to the law of the land, he is punishable; and the usual course,
therefore, has been to leave the question to tiie Jury, whether the party accused had a
sufficient degree of reason to know that he was doing an act that was wrong ; and this
course we think is correct, aceOinpanied with such observations and explanations as the
circumstances of each particular case may require. The answer to the fourth question
must, of course, depend on the nature of the delusion; but, making the same assumption
as we did before, namely, that he labours under such a partial delusion only, and is not in
other respects insane, we think he must be considered in the same situation as to responsi-
bility, as if the facts with respect to which the delusion exists were real. For example, if
under the influence of delusion, he supposes another man to be in the act of attempting to
take away his life, and he kills that man, as he supposes, in self defence, he would be
exempt from punishment. If his delusion was, that the deceased had inflicted a serious
injury to his character and fortune, and he killed him in revenge for such supposed in-
jury, he would be liable to punishment. In answer to the last question, we state to your
Lordships, that we tiiink the medical man, under the circumstances supposed, cannot, in
strictness, be asked his opinion in the terms above stated, because each of those ques-
tions involves the determination of the truth of the facts deposed, on which it is for the
jury to decide; and the questions are not mere questions upon a matter of science, in
which case, such evidence is admissible. But where the facts are admitted, or not dis-
puted, and the question becomes substantially one of science only, it may be convenient
to allow the question to be put in that general form, though the same cannot be insisted
on as a matter of right." Per Tindal, C. J. delivering the opinion of the Judges in,
McAaiiphten's Case, 10 CI. S( Fin. 200. 208. Maule, J., diss. p. 204—208. See also
Hansard's Pari. Debates, Vol. Ql.pp. 288. 714.
In a late case, {Commonweallh v. Mosler,) before the Supreme Court of Pennsylvania,
the defence of insanity was set up on an indictment for murder, and discussed at great
Ivngth. Chief Justice Gibson, in delivering the charge to the jury, said:
" Insanity is mental or moral — the latter being sometimes called homicidal mania, and
properly so. It is my purpose to deliver to you the law on this ground of defence, and
not to press upon your consideration, at least to an unusual degree, the circumstances of
the present case, on which the law acts. A man may be mad on all subjects; and then,
though he may have glimmerings of reason, he is not a responsible agent. This is
general insanity; but, if it be not so great in its extent or degree as to blind him to the
nature and consequences of his moral duty, it is no defence to an accusation of crime.
It must be so great as entirely to destroy his perception of right and wrong; and it is
not until that perception is thus destroyed, that he ceases to be responsible. It must
amount to delusion or hallucination, controlling his will and making the commission of
the act, in his api)rchcnsion, a duty of overruling necessity. The most apt illustration
of the latter is the perverted sense of religious obligation, which has caused men some-
times to sucrifice their wives and children.
" Partial insanity is confined to a particular subject — the man being sane on every
other. In that species of madness, it is j)lain that he is a responsible agent, if he were
not instigated by his madness to perpetrate the act. He continues to be a legitimate
subject of punishment, although he may have been laboring undur a moral obliquity of
HISTORIA PLACITORUM CORON.E. 37
perception, as much so as if he were merely laboring under ah obliquity of vision. A
man wliose mind squint'', unless impelled to crime by this very mental obliquity, is as
much amenable to punishment as one whose eye squints. On this point, there has been a
mistake as melancholy as it is popular. It has been announced by learned doctors, that,
if a Jiian has the least taint of insanity entering into his mental structure, it dischariies
him of all responsibility to the laws. To this monstrous error may be traced both the
fecundity in homicides which has dishonored this country, and the immunity which has
attended them. The law is that, whether the insanity be general or partial, the degree
of it must be so great as to have controlled the will of its subject, and to have talien
from liim the freedom of moral action.
" But there is a moral or homicidal insanity consisting of an irresistible inclination to
kill, or to commit some other particular offence. There may be an unseen ligament
pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and
placing it under a coercion which, while lis results are clearly perceived, is incapable of
resistance. The doctrine which acknowledges this mania is dangerous in its relations,
and can be recognized only in the clearest cases. It ought to be shown to have beea
habitual, or at least to have evinced itself in more than a single instance. It is seldom
directed against a particular individual ; but that it may be so, is proved by the case of
Jtbe young woman who%'as deluded by an irresistible impulse to destroy her child, though
aware of the heinous nature of the act. The frequency of tliis constitutional malady is
fortunately small, and it is better to confine it within the strictest limits. If juries were
to allow it as a general motive operating in cases of this character, its recognition would
destroy social order as well as personal safety. To establish it as a justification in any
particular case, it is necessary either to show, by clear' proofs, its contemporaneous
existence, evinced by present circumstances, or the existence of an. habitual tendency
developed in previous cases, becoming in itself a second nature."
The jury convicted tlie prisoner, and the Court was unanimous in refusing a new trial.
Com. V, Mosler, 6 Penn, L. J. 93, 4 Barr. Rep.
The leading works upon the medical jurisprudence of insanity, are Esquirol on In.
sanity; Marc de la Folic; Ray on Insanity; Winslow on the Plea af Insanity; Collin-
son on Lunacy; Shelford on Lunacy. Taylor's Med. Jur. {London, 1844.) The inquirer
will find an article on the value and effect of medical testimony in The British and
Foreign Mid. Review for July, 1S43. In Roger's Trial, {Boston, 1844,) reported by
Messrs. Bigelow ^ Bemis, counsel for the defendant, will be found all the leading autho-
rities, both the text books and the adjudged cases, many of them learnedly and tho-
roughly examined.
CHAPTER V.
CONCERNI^'G CASUALTY AND MISFORTUNE, HOW FAR IT EXCUSETH
IN CRIMINALS.
I COME to the second kind of accidental defects, viz. casicallr/
and misfortune, and to consider how far it excuseth : and |] 38 ]]
first we are to observe in this, and Hkewise in some other
of the defects before and hereafter mentioned, a difference between
civil suits, that are terminated z?v, cornpensationem damni iUali,Q.\\di
criminal suits or prosecutions, that are in vindlclam criminis coni-
?nissi.
If a man be shooting in the fields at rovers, and his arrow hurts
a person standing near ihe mark, tlie. party hurt shall have his ac-
tion of trespass, and recover his daniages, though the hurt were cas-
VOL. I.— 6
38 HISTORIA PLACITORUM CORONA.
iial;(fir) for the party is damnified by him, and the damages are but
his reparation ; but if the party had been killed, it had been /;er infor-
tunium, and the archer should not suffer death for it, though yet
he goes not altogetiier free from all punishment. (6) 6 E. 4. 7. per
Cateshy.{c)
As to criminal proceedings, if the act that is committed be simply
casual, and /?er infortunium, regularly that act, which, were it done
ex (inimi intentione, were punishable with death, is not by the laws
of England to undergo that punishment; for it is the will and in-
tention, that regularly is required, as well as the act and event, to
make the offence capital.
Now, what shall be said thus simply casual, and what the
^ 39 ]] punishment, will be at large considered, when we come to
homicide /je/' infortunium; only something will be neces-
sary to be said thereof here. •
If a man do ex intent ione and voluntarily an unlawful act tending
to bodily hurt of any person, as by striking or beating him, though
he did not intend to kill him, but the death of the party struck doth
follow thereby within the year and day ;(</) or if he strike at one,
and missing him kills another whom he did not intend, this is felo-
ny(e) and homicide, and not casualty or per infortunium. .
So it is if he be doing an unlawful act, though not intending bodily
harm of any person, as throwing a stone at another's horse, if it hit
a person and kill him; this is felony and homicide and not per infor-
tunium;(f) for the act was voluntary, though the event not intended ;
and therefore the act itself being unlawful, he is criminally guilty of
the consequence, that follows:
But if a man be doing a lawful act without intention of any bodily
harm to any person, and the death of any person thereby ensues,, as
if he be cleaving wood, and the axe tlies from the helve, and kills anr
other, this indeed is manslaughter, but per infortunium; and the
party is not to suffer death, but is to be pardoned of course; for it
appears by the statute of Marlbridge, cap. 2G. that it was not done
(a) Hob. 134. - .
{h) For he forfeits all liis goods and chattels. 2 //. 3. 18. F. Corone. 302. 2 Co. Instit,
14y. 3 Co. Instit. 2:20. Ey llie ancient law he was liable to make the same recompense
or were^ild, as in any other case of homicide; e. ff. if one shooting at a mark should
accidentally wound and kill anotlier, he was nevertheless to pay his wercgild. Leg. H.
2. I. 88. I. 90. Legis (nam est placitain, qui ivscienter peccat, scicntir eintndet ; but by
the same law, if one, who was standing on a tree or any other place, where lie was at
work, should chance to full on another passing by, he was not to pay any tiling, but was
deemed entirely innocent, b'ee Wilk. Leg. AngloSax. p.211, 27D.
(c) B. Corone 148. Trespass 310. F. Corone 354.
(d) The reason of tliis is, because the law doth presume, tlrat after the year and day it
cannot then be discerned, wiiethcr he died of the stroke, or a natural death. 3 Co. Jnstit.
53.
(e; The like in the case of maiiicm, if a man strike at one, and missing him mailiem
another, 13 H. 7, 14. a.
(/^ II H. 7. 23. a. per Fincux Ch. Just. B. Corone 229. Froclamation 13. 22. Assise
pi. 71.
HISTORIA PLACITORUM CORONA. 40
per feloninm;{g) yet the laws of England are so tender of
the hfe of man, and to make men very cautions in all their [ 40 ]
actions that the party, ihough his life be spared, yet forfeits
his aoods, and must expect the king's grace to restore them.
There happened this case at Teterhoroiigh: Deer broke into the
corn of A. and spoiled it in the night tiriie ; A. sets his servant to
watch in the night with a charged gun at the corner of the field,
commanding him, that, when he heard anything rush into the stand-
ing corn, he should shoot at that place, for it was the deer : the mas-
■ ter was in another corner of the field, rushed into the standing corn ;
the servant according to his master's direction shot, and killed his
master; it was agreed on all hands, this was neither petit treason,
nor murder, but whether it were simple homicide, or ;;erz7?/br/?;«n/m,
was a great difficulty: First, the shooting was lawful, when the deer
came into the corn, it being no purlieu, nor proclaimed, or chased
deer; again, the error of the servant was caused by the master's direc-
tion, and his own act ; but if it had been a stranger that had been
killed it had been homicide, and not misadventure ; on the other side,
the servant was to have taken more care, and not to have shot upon
such a token as might have befallen a man as well as a deer; and
therefore for the omission of due diligence, and better inspection, be-
fore he adventured to shoot, it might amount to manslaughter, and so
be capital ; and this seems to be the truer opinion.
But in the case of Sir WilUam Haivksworth, related by Baker in
his chronicle of the time of Edward IV. p. 223, (A) he being weary of
his life, and willing to be rid of it by another's hand, blamed his par-
ker for suffering his deer to be destroyed, and commanded iiim, that
he should shoot the next n)an that he met in his park, that would
not stand or speak; the knight himself came in the night into the
park, and being met by the keeper refused to stand or speak ; the
keeper shot and killed him, not knowing him to be his master; this
seems to be no felony, but excusable by the statute of Male-
faclores in parcis, for the keeper was in no fault, but his [ 41 ]]
master; but, iiad he known him, it had been murder.
As to matter of high treason, where the life of the king is concern-
ed, it is not safe too easily to admit an excuse by chance or misfor-
tune ; though such fact cannot be treason, that was purely casual and
involuntary, for there must be a compassing or imagining to make
(c) Here our author rightly says it appears by the statute of Marlhrid^e, that it was
not teiony, for that statute only supposes it not to be felony, but does not make that not
to be Iblony which was so before, as some have imagined. "2. Co. Instit. 148, 315. for it
appears by Magna Charta rap. 26. which was before the statute of Marlhridgc, that he
who killed another per infortunium, was in no danger of death. Kel. 123. nor indeed
could it be felony, it not being done /e//eo animo, 4 Co, 134 b. The design of that statute
was fpiite of another nature, viz. tliat the country should not be amerced where a mau
was killed per infortunium, for at that time murdr}im peculiarly signified the secret pri-
vate killing of a man; as if he was found killed, but it was not known by whom; and
tlius it is defined by Bracton, Lib. III. de corona, cap. 1 to be occulta orcisio; and in the
laws of Henry \.l.[)2. murdritus homo dicebuter, cujiis iiUirfectio ncsciebatur ; and in
Dialo'jo de Scacrario, Lib, I. cap. 10. 10. murdrum idem est, quod absconditum.
(//) Sub anno 1471.
41 HISTORIA PLACITORUM CORONA.
treason ; yet a treasonable intention may be disgnised under the color
of chance, and the safety of the king's life is of highest concernment.
And therefore when JValter Tyrrel, with a glance of an arrow,
from a tree involnntarily, as Mattheiv Paris{k) tells us, killed fVil-
liuni Rufus,\i could not be treason, (/) because there was no purpose
of any mischief, and he shot at the deer by the king's command ; yet
the fact was of such a consequence, that he fled for it, which was a
circumstance that might probably infer, that there was some iil-
intention, which might make him guilty of treason, and not barely
accident. Co. P. C. p. 6.
History tells us, that upon a solemn just, or turnament appointed
by Henrr/ II. king of France, upon the marriage of his daughter, the
king himself would needs run, and commanded the earl of Montgom-
ery to run against him ; the earl's lance breaking upon the king's
cuirasse, a splinter flew into the king's eye, and hit it, whereof he
died; this was not treason, because purely accidental. [1]
[ 42 ] CHAPTER VI.
CONCERNING IGNORANCE, AND HOW FAR IT PREVAILS, TO EXCUSE.
IN CAPITAL CRIMES.
Ignorance of the municipal law of the kingdom, or of the penalty
thereby inflicted upon oflenders, doth not excuse any, that is of the
age of discretion and campus mcjilis, from the penalty of the breach
(k) p. 54. (l) Custumier de Normand. cap. 14.
[1] Whenever death is the consequence of idle, dangerous and unlawful sports, or of
heedless, wanton and indiscreet acts, without a felonious intent the party causing the
death is guilty of manslaughter. As if a man rides an unruly horse amongst a crowd of
people, 1 East, P. C231 ; or tlirows a stone, or slioots an arrow over a wall into a pub-
lic or frequented street, post paire 475, or discharging his pistols into a public street up-
on alighting from his carriage, 1 Stra. 481 : in any of these cases, thougli the party may
be perfectly innocent of any mischievous intent, still if death ensues lie is guilty of man-
slaughter. So, if the pvvner suffers to be at large any animal which he knows to be vi-
cious and mischievous, and it kills a man, it has been thought by some that he may be in-
dicted for manslaughter; but it is well agreed that he is guilty of a hiorh misdetncanor.
2 Hawk. P. C. c. 13, § 8 ; and in a very recent case of that kind. Best, C J. laid down as
law, "that if a person think proper to keep an animal of this description, (a bull) knowing
its' vicious nature, and another person is killed by it, it will be manslaughter in the own-
er, if nothiiiff morfi ; at all events it will he an aggravated speciv& of muiisl an ghter : Black-
man v. Simmonds, 3 Carr. 6^ Pay. 140. If workmen in the ordinary course of their
business, throw rubbish from a house in a direction in which persons are likely to pass,
and any one passing is killed, this is manslaughter; Ward's case, 1 East P. C. 5J61, 262,
2G3, 270; Rex v. Marji/ii/, G Carr. Sf I'ay. 103. As to .what are lawiul sports, see Put-
ton, title Riot, 4 Sleph. Citinmcntaries 101, 4 Bl. Coin. 183, note bij Ri/land, 19 ed. Land.
1836. The cases in which the propriety of the act which causes the injury, the man-
ner of doing it, or the circumstances under which it is done, arc considered, may be t()und
1 Hawk c. 29 s. 3 ; Foster 262 ; Rex v. Martin, 3 C. S( P.-2\l; Hull's case 1 664, K,l.
40; 1 Russell 769; Rex v. Walhr, 1 C. Sf P. 320; Rex v. Gree, 7 C. &; P. 156; R.v.
A^lrn et al. 7 C. J^ P. 153; 4 hist. 251 ; R<x v. Van Batchcll, 3 C. 4- P. 629; Rex v,
Williamson, 3 C. Sj P. 635; Rex v. Spiller, 5 C. Sf P. 333 ; see post, c. 39 notes.
HISTORIA PLACITORUM CORONA. 42
of it ; because every person of the age of discretion and compoa men-
tis is bound to know the law, and presumed so to do : Jgnoraiilia
eornm, qnx qxds scire tenetur, non excusat.{a)
But in some cases is;nnrantia facti doth excuse, for such an ignor
ranee many times makes the act itself morally involuntary; and in-
deed many of the cases of misfortune and casualty mentioned in the
former chapter are instances that fall in with this of ignorance : I
shall add but one or two more.
It is known in war, that it is the greatest offence for a soldier to
kill or so much as to assault his general: , suppose then the inferior
otTicer sets his watch, or sentinels, and the general to try the vigilance
or courage of his sentinels comes upon them in the night in the pos-
ture of an, enemy, (as some commanders have too rashly done) the
sentinel strikes, or shoots him, tal«ng him to be an enemy; his igno-
rance of the person excuseth his offence.
In the case of Level indicted for the death of Frances Freeman,
the case was, that William Level being in bed and asleep in the
night, his servant hired Frances Freeman to help her to do her work,
and about twelve of the clock in the night the servant going to let out
i^/Yince.s thought she heard thieves breaking open the door; she there-
fore ran up speedily to her master, and informed him, that she thought
thieves, were breaking open the door; the master rising suddenly, and
taking a rapier, ran down suddenly ; Frances hid herself in
the b*ittery; lest she should be discovered; Leveies \v\{e, [ 43 J
spying Frances in the buttery, cried out to her husband,
'^Here they be, that would undo its." Level runs into the buttery
in the dark, not knowing Frances, but thinking her to be a thief, and
thrusting with his rapier before him hit Frances in the breast mortal-
ly, whereof she instantly died. This was resolved to be neither mur-
der, nor manslaughter, nor felony. Vide this case cited by justice
Jo)ies, F. 15 Car. I. B. R. Cro. Car. 53S. Cook's case.
CHAPTER VII.
TOUCHIXG INCAPACITIES, OR EXCrSES BY REASOX OF CIVIL SUBJEC-
TIOX.
I COME now to those incapacities, which I have styled civil, and to
consider how far they indemnify and excuse in criminals, and crimi-
nal punishments.
And first concerr;ing that, which ariseth by reason of civil subjec-
tion.
And this civil subjection is principally of the subject to his prince,
the servant to his master, the child to liis parent, and the wife to her
husband. Somewhat I shall say of each of these.
I. As to the first of these subjections, the subject to his prince;
it is regularly true, that the law presumes, the king will do no wrong;
(a) Phwd. 343. a.
43 HISTORIA PLACITORUM CORON.^.
neither indeed can do any wrong;(r/) and therefore, if the king com-
mand an unlawful act to be done, the offence of the instru-
^ 44 ^ nient is not thereby indemnified;(6) for though the king is
not under the coercive power of the law,[l] yet in manycases
his commands are under the directive power of the law, which con-
sequently makes the act itself invalid, if unlawful, and so renders the
instrument of the execution thereof obnoxious to the punishment of
the law. Vide Slamf. P. C. 102. b.{c) yet in the time of peace, if two
men combat together at barriers, or for trial of skill, if one kill the
other it is homicide; but if it be by the command of the king, it is
said(o') it is no felony. 11 H. 1. 23. a.
II. As touching the civil subjection of the child, or servant ; if
either of them commit an act, which in itself is treason, or felony, it
is neither excused nor extenuateok as to the point of punishment by
the command of his master or parent; for the command is void and
against law, and doth not protect either the commander or the instru-
ment, that executes it by such command. (e)
III. As to the civil subjection of the wife to the htisbnnd: though
in many cases the command, or authority of the husband, either
express or implied, doth not privilege the wife from capital punish-
ment for capital offences; yet in 5ome cases the indulgence of the law
doth privilege her from capital punishment for such ofiences, as are
in themselves of a capital nature; wherein tliese ensuing dilferences
are observable. ♦
1. If a feme covert alone without her husband, and without the
coercion of her husband, commit treason or felony, though it be but
larceny, she shall suffer the like judgment and execution, as if she
were sole ; this is agreed on all hands. Stamf. P. C. Lib. I. cap. 19.
15 ^. 2. Corone 383.
2. But if she commit larceny by the coercion of the hus-
[ 45 ] band, she is not guilty. 21 Ass. AO;{f) and according to
some, if it be by the command of her husband Ibid.{g) which
seems to be law, if her husband be present ;( A) but not if her husband
be absent at the time and place of the felony comtnitted.
3. 13ut this command or coercion of the husband doth not excuse
in case of treason, nor of murder,»in regard of the heinousness of
those crimes. Mr. Balton's Just. Ca. 104.(/) And hence it was that
(a) Co. Lit. 19.6.4.
(/>) As if one man arrest anoUicr merely by the kinjr's commandment, that shall be no
excuse to hinl, but lie is nevertlielcss liable to an action of false imprisonment. 16 //. 6.
F. MunHriiuns de fails 182. 1 //. 7. t. /i. rrerogntir>e 139.
(c) Vide liractim Lib. III. Dv nrtiniiihus, cap 9.
((/) I'cr Fineux Cli. Just, but Jiiuke in bis abridgement of this case, Corona 229. says,
that other justices in the time of IJcitrij VIII. denied this opinion of Fineux, and held,
that it was felony to kill a man in jusimir iitid the like? notwithstanding the command-
ment of the king; for that tlie commandment is against law. 3 Co. List. 56. 160.
(e) DfiU. Just. Cap. 1.57. N. Edit.
(/) 7''. Corone, 199. Uracton de Corone. cap. 32. § 9.
(f) Qiioiiiam ipsa superiori suo ohedire dchet. Leg. Incc, I. 57. B. Corone 108.
(//) l]ec;iuse the law siipposes her to be then under the coercion of her husband. Kel 31.
(i) TV. Edit. cap. 157. ^
[IJ The People v. McLeod, 1 IliWs Re p. 377.
HISTORIA PLACITORUM CORONA. 45
in the cases of the treasons committed by Arden and Somerville{k)
against Queen Elizabeth, both their wives were attaint oiliigh trea-
son, though their execution was spared; and yet they were only
assenters to their husband's treasons, and not immediately actors in
it, and so were principals in the second degree; and upon the same
account the earl of Somersel and his wife were both attaint, as acces-
saries before, in the murder and poisoning of Sir Thomas Over-
bury.{l)\_2]
(k) 1 And. p. 104. (0 Stat. Trials, Vol. I. TV. 28 ^- 29.
[2] Somerville's case, 1 And. 104, which is the only case where husband and wife have
been convicted of treason, only shows that a wife may be convicted of treason with her
husband. There Arden and iiis wife were cliarcred with procuring- Sotnerville to destroy
the Queen, and both found guilty, but as none of the evidence is stated, it may have beea
that the wife was the instigator, and both properly convicted. In SomerseVs case, which
is the only case of a wife convicted as well as her husband, as an accessary to a murder,
according to 3 Inst. 50, the Earl and Countess were indicted as accessaries before the
fact, to tlie murder of Sir T. Overhury, the wife was arraigned alone, first, and pleaded
guilty, and being asked what she had to say why judgment of death should not be given
against her, she said, " I can much aggravate but nothing extenuate my fault." {2 St,
Tr. 957.) Assuming, therefore, that the indictment was joint against both, the case only
proves tlicLt the wife may properly be convicted upon her own confession, which indicates
that she was the more guilty party ; as it is clear she was in this case. See Hume^s
Hist, Eng. vol. 6, |». 68, &,c. Bat as the Earl and Countess were separately arraigned,
and on ditFurent davs, and as the indictment against the Earl, as recited in his pardon,
(2 St. Tr. 1014,) is against him alone, it may be inferred that the Countess was indict-
ed alone; if so, the case is merely that of a wife pleading guilty to an indictment charg-
ing her alone as accessory, and unless in such a case she either pleaded that she com-
mitted the offence in company witii lier husband, (as it seems she may. Post. 47, M. 37
Ed. 3 Rot. 34,) or such appeared to be the case upon her trial, no question as to coercion
could arise. In Reg. v. Alison, 8 C. S^ P. 418, Mr. J. Paiteson mentions an old case
where a husband and wife intending to destroy themselves, took poison together, the
hujiband died but the wife recovered, and was tried for murder, and acquitted solely on
the ground that being the wife of the deceased she was under his control, and inasmuch
as the proposal to commit suicide had been first suggested by him, it was considered
that she was not a free agent; but I know from the best authority, (says Mr. Greaves,
in a note in RusseWs C. <V M.) that the very learned judge guarded against subscribing to
the reason given for this decision. Probably the case referred to is an anonymous one.
Moor, 754, where it is said the question was, whether it was murder in the woman, and
the Recorder caused the special matter to be found, but no decision is stated, nor have
I been able, (adds Mr. Greaves,) to find the case elsewhere: 1 Russ. on Crimes, 18, note.
Before Somerville''s case, 26 Eliz. and Somersets case, A. D. 1615, tliere seems no ex.
ception to the general rule that the coercion of the husband excuses the act of the wife.
(See 27 Ass. 4iJ ; Stamf. P. C. 26, 27. 142; Pzilion de Pace Regis. 130; Br. Ah Coron,
108; Filz Ab. Coron 130. 160. 199.) But after those cases there are the following
exceptions in the books: — Bac. ]\!ax. 57, excepts treason only; Dalton, 147, treason
and murder, citing for the laiter. Mar, Lect. 12, (perhaps some reader of some Inn of
Court,) 1 Hale P. C. p. 45. 47, treason, murder, and liomicide; and p. 434, treason,
murder, and#nanslaughter; Keyling, 3], an obiter dictvm, murder only ; Hiwli. Ii. 1, c.
1, s. 11, treason, murder, and robbery; Black. Commentaries, vol. i. p. 444, treason and
murder: vol. iv. p. 29, treason and mala in se, as murder and the like. Hale, there,
fore, alone excepts manslaughter, and Hawkins introduces robbery without an authority
for so doing; and, on the contrary, in Reg. v. Cruse, 8 C. 4' P- 545, a case is cited
where Burrttngh, J., held, that the rule extended to robbery. It seems long to have been
considered that the niere presence of the husband was a coercion, (see 4 Black Com. p.
23.) and it was so contended in Reg. v. Cruse; and Bac. Max. 56, expressly states that
a wife con neither be principal nor accessary by joining with her husband in a felony,
because the law intends her to have no will, and in the next page he says, " If husband
and wite join in committing treason, the necessity of obedience doth not excuse the
wife's offence, as it docs in felony." Now if this means that it does not absolutely excuse
as he has stated in the previous page, it is warranted by Somerville^s case, which shows
45 HISTORIA PLACITORUM CORONA.
4. If the husband and wife together commit larceny or burglary,
by the opinion of Bracton, Lib. III. cap. 32. § \0.{m) botli are
guihy; and so it hath been practised by some judges. Vide Dull,
ubi supra, cap. 104. and possibly in strictness of law, unless the
(/n) And Sect. 9. and Flefa, Lib. I. cap. 38. § 12, 13, 14. especially, Sifurtum invenia-
tur sub Clavibus Uxoris. Vide Bracton Sf Fleta, ibid, and LL^ Cnuti, Z. 74. '
that a wife may be guilty of treason in company with her husband, and which would be
an exceplion to the general rule as stated by Bacon. So also would the conviction of a
wife with her husband for murder in any case be an exception to the same rule. Dalton
cites the exception from Bacon, without the rule, and Hale follows. Dalton and the
other writers follow Hale; and it seems by no means improbable that the exceptions of
treason and murder, which seem to have sprung from Somerville''s and SomerseVs cases,
and vi'hich were probably exceptions to the rule as stated by Bacon, have been, continued
by writers without adverting to their origin, or observing that the presence of the hus-
band is no longer considered an absolute excuse, but only affords a prima facie pre
sumption that the wife acted by his coercion. See the argument of Mr. Carrington, .in
Reg. V. Cruse, 8 C. Sf P. 541. 1 Russ. on Crimes, 18. 24. Mr. Greave''s Notes, Am.
ed. 1845. See Com. v. Neat, 10 Mass. R. 152. Marlow v. Com. 1 Mass. R. 347. 391.
Com. V. Leicis, 1 Mete. R. 151. T/ie People v. Townscnd, 3 HiWs N. Y. R. 479. The
iState V. Harvey, 3 N. Hamp. R. 65. Com. v. Trimmer, I Mass. R. 476. Jones v. The
State, 5 Blackf. (Ind.) R. 141. 492. Biirn's Just. tit. Wife, 23th Lond. ed.
There is no doubt that in all misdemeanors a wife may be jointly convicted with Ijer
husband, as she may be proved to have acted voluntarily, but there is no authority that the
same rule as to coercion, which applies to felonies, docs not extend to misdemeanors. On
the contrary. Rex v. Price, 8. C. cSj- P. 19, and Anon. Math. Dig. Cr. Law 262, show
that the rule applies to the misdemeanor of uttering base coin, and the reason given in
Rex V. Dixon, ID Mud. 335, and Reg. v. Williams, Sulk. 384, as to tiie keeping of gaming
and bawdy houses, that the wife mny probably have as great, nay a greater share in the
criminal management of the house, tiian the liusband, tends to show that in order to convict
the wife, she must be acting voluntarily and not under coercion. In Reg. v. Cruse, 8 C. Sf
P. 541, the wife had taken a very active part. Reg. v. Williams, and Reg. v. Ingram,
Salk. 384, were in arrest of judgment, and therefore the Court would presume if necesr
sary, that the wife had acted voluntarily ; and Reg. v. Dixon, was on demurrer, and
the Court would, and it seems did, hold the indictment good,^ because it might be proved
that the wife was not under coercion. There is no autiiority, therefore, that the rule
does not extend to misdemeanors, and the tendency of the authorities certainly is, that it
does. 1 Russ. on Crimes, 19 note (i), 5th Am. Ed. 1845.
The following positions seem fairly deducible from the cases upon this subject; 1st,
There is no objection on demurrer to an indictment which charges husband and wife
jointly, with the commission of an offence; for the indictment is joint and several, and
both may be convicted, if it appear that the wife was not acting under the coercion of the
husband or eitiier of them ; 2dly, 'I'liere is no objection cither in arrest of judgment or on
error, to the joint conviction of husband and wife of the same offence, for she may have
been the instigator, and both guilty; 3dly, Upon the trial of husband and wife, the
prima facie presumption is, tiiut she acted under liis coercion, provided he were actually
present at tiie lime the fch^ny was committed. If, tiierctorc, nothing appear but that the
felony was committed w hilc they were both togetiier, she jury ought to be directed to
acquit the wife ; 4tlily Tliis jjresumption is prima facie only, and may be relutted either
by showing that the wife wns the instigator or more active party, or that the husband
though present was incapable of coercing, as that he was a crip[)le, and bed ridden, or
that the wife was the stronger of the two. 1 Russ. on Crimes, 21 note (g), 4 Steph.C . 81.
The Englisli cases will be found in 1 Russ. cited sup., and the American in Wharton's
Am. Crim. Law, 19,23.
I'lic following passage is taken from the Report of the Massachusetts Commissioners,
appointed " to reduce so much of the Common Law as relates to Crimes and Punish-
nients to a written and systematic cotle:"
"A married woman is presumed not to act under compulsion by her husband in the
commis>ioii of treason, murder, or robbery in his presence. In respect to other felonies,
and to misdemeanors committed by her, or to which she is accessary before the fict, in
prcbcncc of her husband, and in which lie is concerned, she is presumed to act under
HISTORIA PLACITORUM CORONA. 45
actual coercion of the husband appear, she may be guilty in such a
cnse ; for it may many times fall oat, that the husband doth commit
larceny by tlie instigation, though he cannot in law do it by the
coercion of his wife; but the latter practice hath obtained, that if the
husband and wife commit burglary and larceny together, the wife
shall be acquitted, and the husband only convicted; and with this
agrees the old book, 2 E. 3. Corone 160. And this being the modern
practice and infavorem vitasis fittest to be followed ; and the rather,
because otherwise for the same felony the husband may be saved by
the benefit of his clergy, and the wife hanged, where the
case is within clergy ;(?i) though I confess this reason is but (^ 46 ^
(n) The reason of this is, because a woman cannot by law have tlie benefit of the
clergy, li Co. 29. b. yet in Fitz. Corone 461, it was admitted, that a woman might claim
clerg-y; however, as the law now stands, she may in all cases have the same benefit by
the statute of 3 4" 4 W. Sf M. cap. 9. § 7. as a man may by his clergy. See post c, 44 n,
compulsion by him, unless such presumption is precluded by the kind, nature, or charac-
ter of the offence, as in case of her being a common scold; but such presumption may
be rebutted bv the circumstances of the case, or bv other evidence. Archb., P. Q. S. 80.
Dick's C, i'Russ. 1G. 1 Hawk, c. 1, s. 12, led. Dixon Sf Wise's C, 10 Mod. 375.
Dult, 126.
She is not chargeable with instigating her husband to any crime.
She is not chargeable for receiving goods stolen, embezzled, or extorted by her hus-
band; nor as an accessary after tlie fact to the commission of a crime by her husband.
The common law holds the wife answerable for treason, murder, and robbery commit-
ted by her in presence of her husband, without any presumption tliat she is under com-
pulsion by him. In respect to other felonies, and to misdemeanors so committed by her,
the doctrine of the common law is very obscure. It is most frequently laid down that
she is presumed to be under compulsion in tiie commission of otlier felonies in his pre-
sence. But it is distinctly stated by Mr. Deacon, v. 2, p. 1377, and by Mr. Archbdd,
Pr. Q. S., 81, citing 1 Hale, 516, that this presumption may be rebutted by evidence ta
the contrary. And yet in case of its being proved that the wife was the active party in
receiving stolen goods in her husband's presence, she has been held not to be chargeable
with the offence. Draper's C, Ry. ^- M. 234, cited 2 Deac. 178-9. Archer's C, cited
Archb., P. Q. S. 80, which is a direct contradiction of the above doctrine ; and see also
Squire's C, 1 Russ. 16, ltd., cited 2 Deac. 1378, which was the case of an apprentice
being starved to death by the husband and wife. By the Englishlaw, this presumption,
though confined to felonies, has a very wide application, since the catalogue of felonies is
in England much extended by statutes. It is implied in the English law, though no
rule is emphatically laid down to that effect, that the presumption is applicable to mis-
demeanors committed by the wife in presence of her husband. Thus Mr. Deacon, v. 2,
p. 1378, says, " In inferior misdemeanors, there is another exception to the irresponsi-
bilty of the wife, for she may be indicted and punished with her husband for keeping a
brothel, this being considered to be an offence touching the domestic economy and govern-
ment of the house in which the wife has necessarily a principal share." This distinctly
implies that, the presumption extends to misdemeanors. But there are some other
misdemeanors to which the exception seems to apply more obviously than to that of
keeping a brothel. In case of perjury by the wife, though the husband might be present
at the time of her testifying, the presumption of coercion by him would ordinarily be
absurd. The presumption of coercion by the husband is also limited in the code re-
ported by the commissioners, to offences by the wife in which "the husband is concerned,"
for otherwise the law would make the husband guilty of a crime committed by the wife,
though he should endeavour to prevent her from committing it. This limitation of the
presumptmn is not known to be stated in the books of the common law, but it can hardly
be supposed that it is not part of that law, though the language in which the presump.
*^°" 's "sually stated in the books excludes such limitation. 1 Hawk, c. 1, led.
Archb. P. Q. S. 80, 81. See Hammond's Project of a Code of Forgery, a. G33, p. 197.
Six v. Cheeney,, Wright's R., 9. Report of the Penal Code of Massachusetts, c. iv. {Boston,
lo44.)
VOL. I. — 7
46 HISTORIA PLACITORUM CORONA.
of small value, for in manslaughter committed jointly by husband
and wife the husband may have his clergy, and yet the wife is not
on that account to be privileged by her coverture.
And accordingly in the modern practice, where the husband and
wile, by the name of his wife, have been indicted for a larceny, or
burglary jointly, and have pleaded to the indictment, and the wife
convicted, and the husband acquitted; merciful judges have used to
reprieve the wife before judgment, because they have thought, or at
least doubted, that the indictment was void against the wife, she ap-
pearing by the indictment to be a wife, and yet charged with felony
jointly with her husband.
But this is not agreeable to law, for the indictment stands good
against the wife, in as much as every indictment is as well several as
joint; and as upon such an indictment the wife may be acquitted, and
the husband found guilty, so e converso the wife may be convicted,
and the husb^ind acquitted; for the indictment is in law joint, or sev-
eral, as the fact happens; and so is the book of 15 E. 2 Coronse 3S3,
and accordingly has been the frequent practice Vide Dull, ubi siip.
cap. 104, where there are several instances of the arraigning of hus-
band and wife upon a joint indictment of felony; which, if by law
she could not be any way guilty, had been erroneous, for the indict-
ment itself had been insuflicient: therefore, though the former prac-
tice be merciful, and cautious, it is not agreeable to law; for, tliough
ordinarily according to the modern practice the wife cannot be guilty,
if the husband be guilty of the same larceny or burglary; yet if the
husband upon such an indictment be acquitted, and the wife convict,
judgment ouglit to be given against her upon that indictment; for
every indictment of that nature is joint or several, as the matter falls
out upon the evidence. Vide 22 E. 4. 7.(o)
5. But if the husband and wife together commit a treason,
r 47 ]] murder, or homicide, though she only assented to the trea-
son, they shall both be found guilty, and the wife shall not
be acquitted upon the presumption, that it was by the coercion of this
husband, for the odiousness, and dangerous consequence of the
crin)e;[3] the same law it is, if she be accessary to murder before
the fact.
6. If the husband commit a felony or treason, and the wife know-
ingly receive him, she shall neither be accessary after as to the felony,
nor principal as to the treason, for such bare reception of her hus-
band; for she is suh pot est ate viri., and she is bound to receive her
husband ; but otherwise it is, of the husband's receiving the wife
knowingly after an olfence of this nature committed by lier.(/;)
" M. 37. E. 3. Rot. 34. Line, coram liege. lUcardus Dcy t^- Mar-
fferia Uxor ejus indictati, pro receptamento felonum ; /l/c/r^fcr/V/ dicit,
quod indictamenlum i)redict' super predictam Marge)'ia?n facium mi-
Co) B. Charire de pardon 51. {p) Co. P. C. 108.
[3] See note ante p. 47.
HISTORIA PLACITORUM CORONA. 47
nussufficiens est, eo quod praed' 3far^eria tempore quo ipsa dictosfel-
ones receptasse, seu eis consentire debuisset,fuit cooperta pra:d, Ji/-
cardo viro suo, & adliuc est, & omnino sub poteslate sua, cui ipsa in
nullo contradicere potuit : & ex quo nou iuseritur in iudictamento
praedicto, quod ipsa aliqnod malum fecit, nee eis consentivit,seu ipsos
felones receptavit, ignorante viro suo, petit judicium, si ipsa, vivente
viro suOjde aliquo receptameuto in prrcsentia viri sui occasionari pos-
sit. — Postea viso & diligeuter examinato iudictamento prsedicto super
praefatam Murs^eriam facto, videtur curias, quod indictamentum illud
minus sufficiens est ad ipsam inde ponere responsuram : Ideo cesset
processus versus earn onininu, &c."
Upon which record these things are observable:
1. That the wife, if alone and without her husband, may be acces-
sary to a ielouy post fa chnn. 2. But she cannot together with her
husband be accessary to a felony post factum ; for it shall be entirely
adjudged the act of the husband ; and this is partly the reason, why
she cannot be accessary in receipt of her husband being a felon, be-
cause she is sub potestate viri. 3. That in this case she was not put
to plead to the indictment not guilty, but took her excep-
tion upon the indictment itself; and so note the diversity [43])
between an indictment of felony, as principal, and the indict-
nrent of her, as accessary after; for in the former case she shall be
put to plead not guilty to the indictment, though it appear ki the
body thereof, that she is covert. 4. That yet the indictment stood
good, as to tiie husband ; and upon this consideration, though it is
true the husband and wife may be guilty of a treason, as is before
shown, yet it seems, she shall never be adjudged a traitor barely for
receiving her husband, that is a traitor, or for receiving jointly with
her husband any other person that is a traitor, unless she were also
consenting to the treason, for it shall be entirely adjudged the act of
her husband.
It is certain a fetyie covert may be guilty of misprision of treason
committed by another man than her husband: but whether she can
be guilty of misprision of treason, if she knows her husband's treason,
and reveal it. not, is a case of some difficulty: on the one side, the
great obligation of duty she owes to the safety of the king and king-
dom, the horridness of the offence of treason, and the great danger
that may ensue by concealing it, seems to render her guilty of n)is-
prision of treason, if she should not detect it; on the other side, it
may be said, she is sub potestate viri, she cannot by law be a wit-
ness against her husband, and therefore cannot accuse him. Ideo
quxre. But, certainly, if she consented to the treason of her husband,
though he were the only actor in it, she is guihy as a principal, and
hath no privilege herein by her coverture, as is before shown.
49 HISTORIA PLACITORUM CORONA.
CHAPTER VIII.
CONCERNING THE CIVIL INCAPACITIES BY COMPULSION AND FEAR.
I JOIN these two incapacities together, because they are much of the
same nature, as to many purposes ; and how far these give a privi-
lege, exemption, or mitigation in capital punishments, is now to be
considered.
First, There is to be observed a difference between the times of
war, or public insurrection, or rebellion, and the times of peace; for
in the times of war, and public rebellion, when a person is under so
great a power, that he cannot resist or avoid, the law in some cases
allows an impunity for parties compelled, or drawn by fear of death,
to do some acts in tjiemselves capital, which adrnit no excuse in the
time of peace.
M. 21 E. 3. coram Rege, Rot. 101. Line.'' " Walter deJiJyngton,
and divers of his confederates at St. Botolph's Res;iam potestatem
assumentes, & ut de Guerra insurgentes' quendam Thomam de Oke-
ham sutorem in capitaneum, & majorem suum eligerunt," seized ou
two ships, and took away the corn ;(«) appointed a bell to be rung ;(6)
and commanded, that at the ringing thereof ipsi Sf eorum quilihet
€sser0parati, ^^e. " Et plures homines villae prsedictse, qui ad male-
ficia sua consentire noluerunt, ceperunt, & eos sibi jurare fecerunt ad
imprisas suas manutenendas." They were arraigned upon the in-
dictment, and committed: " lUi, qui coacti fnerunt jurare, dimittun-
tur per manucaptionem ; & illi, qui receperunt denarios, petunt quod,
ex quo patet per indictamentum prsedictum, quod ipsi coacti fuerunt
recipere denarios contra voluntatem suam, petunt, quod possint quieti
recedere ; & consideratum est per curiam, quod nihil mali in
[ 50 3 his reperitur ; sed quia curia nondum advisatur, dies datus
est per manucaptionem ; ideo venit jurata." 1 find no fur-
ther proceeding against them.
M. 7 H. 5. cnram Rege. Rot. 20. Here/, cited Co. P. C. p. 10.
Those, that supplied with victuals '^'w John Oldcasile, and his accom-
plices then in rebellion, as is said, were acquitted by judgment of the
court ; because it was found to be done pro timore mortis, 8^- quod
rccesserunt, qiunn cito jjotiieriint: note, it was only furnishing of
victuals, and pro timore mortis, which excused them : for afler the
battle of Evesham, n\ 49 //. 3., when that prudent act vi^as made for
the settling of the kingdom, called Dictum de Keni/worth, those, iha.t
were drawn to assist tlie barons against the king, though they were
not put into the rank of those that paid five years value of their lands
for their assistance, viz. those, that gratis, S,' voluutarie, ^- non coacti
tniscriint servitia sua contra regem, <§• ejus Jiiium; yet, it seems,
they were put to a smaller mulct ; for by the 12th, 13th, 14th, and 15th
, (fl) One liuiidrccl and twenty quarters ofcorn, value 36Z.
(6) Quondam eoinmunein campanam ordinaverunt pulsari.
HISTORIA PLACITORUM CORONA. 50
articles: " Coacti, vel metu ducti, qui veneriint ad bella, nee pugna-
veruiit, HOC male fecerunt ; impotentes, qui vi vel metu coacti mise-
ruiit servitia sua contra regem, vel ejus filium ; coacti, vel metu ducti,
qui fuerunt deprgedatores, & cum principalibus prcedonibus prseda-
tiones fecerunt, & quando commode potuerunt, recesserunt, & ad
domos redierunt; [emptores scienter rerum alienarum valorem bo-
norum, quse emerunt, restituant, & in misericordia domini regis sint,
quia contra justitiam fecerunt, quia rex inhibuit, jam dimidio anno
elapso;] illi, qui ad mandatum comitis Leycestrise ingressi sunt
Northampton, nee pugnaverunt, nee malum fecerunt, sed ad Eccle-
siatn fugerunt, quando regem venientem viderunt, & hoc sit attinctum
per bonos,solvant, quantum valet terra eorum per dimidiura annum;
illi, qui ex feodo comitis tenebant,sint solum in misericordia
domini regis : impotentes, & alii homines, qui nihil mali fe- [ 51 ]
cerunt, statim rehabeant terras suas, & damna recuperent in
curia domini regis."
But even in such cases, if the whole circumstances of the ease be
such, that he can sutliciently resist, or avoid the power of such rebels,
he is inexcusable, if upon a pretence of fear, or doubt of compulsion,
he assist them.
Now as to times and places of peace.
If a man be menaced with death, unless he will commit an act of
treason, murder, or robbery, the fear of death doth not excusejiim,
if he commit the fact; for the law hath provided a sufficient remedy
against such fears by applying himself to the courts and officers of
justice for a writ or precept de securitate pacis.{d)
Again, if a man be desperately assualted, and in peril of death,
and cannot otherwise escape, unless to satisfy his assailant's fury he
Avill kill an innocent person then present, the fear and actual force
will not acquit him of the crime and punishment of murder, if he
commit the fact; for he ought rather to die himself, than kill an
innocent : but if he cannot otherwise save his own life, the law per-
mits him in his own defence to kill the assailant ; for by the violence
of the assault, and the offence committed upon him by the assailant
himself, the law of nature, and necessity, hath made him his own
protector cxi7n debifo moderamine inculpatse tulelse, as shall be
farther showed, when we come to the chapter of homicide se
defendendo.{*)
But yet farther, it is true in cases of war between sovereign princes
the law of nations allows a prince to begin hostility with such a prince
that designs a war against him; and if the fear Tdc real, and upon
just ground, non tantuni de potentid sed <§• de animq. — Grot de
jure belli Sf pacts, Lib. II. cap. 22. § 5. he may prevent the other's
actual aggression, and need not expect, till the other actually invade
him, when possibly it may be too late to make a safe defence ; and
the reason is, because they are not under any superior, that
may by his processor interposition secure the prince against [ 52 ]
(d) See this writ in the Register, fol. 88. b. F. N. B. Vet. Edit. 79. N. Edit. 177,
(•) Postea cap. 33.
52 HISTORIA PLACITORUM CORONA.
such a just fear; and therefore in such case the law of nations
allows a prince to provide for his own safety.
But it is otherwise between subjects of the same prince : If Jl.
fears upon just grounds, that B. intends to kill him, and is assured,
that he provides weapons, and hes in wait so to do ; yet without an
actual assault by B. upon Ji. or upon his house, to commit that fact,
Ji. may not kill B. by way of prevention ; but he must avoid the
danger by flight, or other means; for a bare fear, though upon a just
cause, and though it be upon a fear of life, gives not a man power to
take away the life of another, but it must be an actual and inevitable
danger of his own life ; for the law hath provided a security for him
by flight, and recourse to the civil magistrate for protection by a writ
or precept de securitate pacts: and thus far touching the privilege by
reason of compulsion or fear.[l]
CHAPTER IX.
CONCERNING THE PRIVILEGE BY REASON OF NECESSITY.
Although all compulsion carry with it somewhat of necessity, and
abates somewhat of the voluntariness of the act that is done, yet
there are some kinds of necessities, that are not by any external com-
pulsion or force.
Touching the necessity of self-preservation against an injurious as-
[1] An apprehension, though ever so well grounded, of having property wasted or
destroyed, or of suffering any other mischief not endangering the person, will afford no
excuse for joining or continuing with rebels. Rex v. McGrowlher, 1 East. P. C. 71.
But it is otherwise if the party join from fear of death, or by compulsion. . Rex v.
Gordon, 1 East. P. C. 71.
'On the indictment on the stal. 7, and 8 Geo. 4, c. 30, s. 4, for breaking a threshing
machine, the judge allowed a witness to be asked whetiier the mob, by whom the ma-
chine was broken, did not compel persons to go with them, and then compel each person
to give one blow to the machine; and also at the time when tiie prisoner and himself
were forced to join the mob, they did not agree together to run away from the mob the
first opportunity. Rex v. Cnitcliley, 5 Car. i^* P- 133.
A., who was insane, collected a number of persons together, who armed themselves,
having a common purpose of resisting the lawfully constituted authorities; A. having
declared that he would cut down any constable who came against him. A., in the pre-
sence of C and D., two of the persons of his party, afterwards shot an assistant of a con-
stable, who came to apprehend A. under a warrant : — Uv.ld, that C. and D. were guilty of
murder, as jjrinciplcs in the first degree, and that any apprehension that C. and L). had of
personal danger to tliemselves from A. was no ground of defence for continuing with
iiiiii after he had so declared his purpose ; and also that it was no ground of defence that
A. and his party had no distinct or particular object in view when they assembled together
and armed themselves. Reg. v. Tyler, 8 Cur & /'. 61G, I'er Demnan, Ch.Just.
The apprehension of .personal danger does not furnish any excuse for assisting in
doing ;iny act which is illegal.
The only force that doth excuse, is a force upon the person and present fear of death ;
and this force and fear must continue all the time the i)arty forced remains with the
party forcing. It is incumbent upon men, who make force their defence, to show an
actual force, and that they joined pro liinorc mortex, et rccesserunt tjuam celo poliierunt.
Fo.u. Dis. 14, 5^16; 4 Sleph. Com. 8384. The U. S. v. Vigol, 2 Dull. R. 346; U. S. v.
JIaskeU, 4 Wash. C. C M. 402.
HISTORIA PLACITORUM CORONA. 52
sault somewhat has been said in the last chapter, and more will be
said hereafter in its due place: I shall proceed therefore to other
instances.
I'iie necessity of the preservation of the peace of the king-
dom by the apprehending notorious malefactors excuseth [ 53 ]
some acts from being felony, which in the matter of them
without such necessity were felony.
If a thief resist, and will not sutler himself to be taken upon hue
and cry or pursuit, justiciari se iwhlit permit tere,\{ he b'e killed by
the pursuants, it is no felony ;(a) de quo vide latins infra.
By the statutes of 3 (§• 4 E. 6 cap. 5 and 1 Mar. cap. 12. If there
be a riotous assembly to the number of twelve assembled to commit
the disorders mentioned in those acts, the justices of the peace, the
sheriff, mayor, or other officer of any corporation, &c. may raise a
power to suppress and apprehend them; and, if they disperse not
upon proclamation, if any of the rioters be killed, or maimed, or hurt
by tiie justices, &c. or those assembled by them to suppress the riot,
it is by this act dispunishable.
It is true, this act(6) continued only during queen Elizabeth's life,
and is now expired ;(c) but although, perchance, as to the killing of
such persons, as do not presently return upon proclamation to their
homes, it needs the aid of an act of parliament to indemnify them ;
yet if they attempt any riotous act, "and cannot be otherwise supprest,
the sheriff, or justice of the peace may make use of such a force upon
them for preservation of the peace, as well by the Common law, as
by the statute; quod vide in ^nder.son''s Rep. part 2 n. 49 p. 67.
Burton's case in fine ; and the statute of 13 //. 4. cap. 7. in princi-
pio, and 2 H. 5. cap. 8, wiiereby all men are bound, upon warning,
10 be assistant to the sheriff and justice for the suppressing of riots
even by force, if it cannot be otherwise effected; so that the clauses
touching this matter m the temporary statutes of 3 8,' 4 E. 6. and I
Mar. are but pursuant to the law and former statutes for necessity
of preserving the peace.
Some of the casuists, and particularly Covarruvias, Tom
.1 Defurti <§♦ rapinx restitutione, § 3. 4. p. 473, and Gro- [ 54 ]
tins de jure belli ac pads, Lib. II. cap. 2. § Q.{d) tell us,
that in case of extreme necessity, either of hunger, or clothing, the
civil distributions of property cease, and by a kind of tacit condition
the first community doth return, and upon this, those common asser-
tions are grounded ; " Quicquid necessitas cogit, defendit.'' " Ne-
cessitas est lex temporis 4* loci.'' " In casu extremse necessitatis
omniasunt communia :" and therefore in such case theft is no theft,
or at least not punishable as theft; and some even of our own law-
(ff) Sec Leg. Ince, I. 25.
(/>) Viz. 1 Mar. cap. 12. for 3 Sfi Ed. 6. cap. 5. was repealed by 1 Mar. cap. 12
(c) It was at first made to conlinue only till the end of the next session, but was
afterwards by several new acts continued during the life of queen Mary; and by 1 Eliz,
cap. IG. was continued during her lite also, and has never since been revived ; but in
1 CrfO. 1. cap. 5. a new act was made to much the same purpose, which is perpetual.
{d) See Fujf. dcjure naturm. Lib. 11. cap. 6. § 6.
54 HISTORIA PLACITORUM CORONyE.
yers(e) have asserted the same ; and very bad use hath been made
of this concession by some of the Jesuitical casuists in France^ who
have thereupon advised apprentices and servants to rob their masters,
when they have judged themselves in want of necessaries, of clothes,
or victuals; whereof, they tell them, they themselves are the compe-
tent judges; and by this means let loose, as much as they can, by
their doctrine of probability, all the ligaments of property and civil
society.
I do therefore take it, that, where persons live under the same
civil government, as here in England, that rule, at least by the laws
of England, is false ; and therefore, if a person, being under neces-
sity for want of victuals, or clothes, shall upon that account clan-
destinely, and anirno furandi steal another man's goods, it is
felony, (/) and a crime by the laws of England punishable with
death; although the judge, before whom the trial is, in this case (as
in other cases of extremity) be by the laws of England intrusted
•with a power to reprieve the offender before or after judgment, in
order to the obtaining the king's mercy.
For 1. Men's properties would be under a strange insecurity,
being laid open to other men's necessities, whereof no man can pos-
sibly judge, but the party himself.
2. Because by the laws of this kingdoTn(^^) sufficient provision is
made for the supply of such necessities by collections for the poor,
and by the power of the civil magistrate; and consonant
r 55 3 hereunto seems to be the law even among the Jeivs, if we
may believe the wisest of kings. P?-overbs vi. 30, 31,
"Men do not despise a thief, if he steal to satisfy his soul, when he
is hungry ; but if he be found, he shall restore seven-fold, and shall
give all the substance of his house." It is true, death was not
among them the penalty of theft, yet his necessity gave him no ex-
emption from the ordinary punishment inflicted by their law upon
that offence. (A) .
Indeed this rule, "in casu extremse necessitatis omnia sunt com-
munia,'^ does hold in some measure in some particular cases, where
by the tacit consent of nations,,or of some particular countries or
societies, it hath obtained.
1. Among the Jeivs it was lawful in case of hunger to pull ears of
standing corn, and eat, Matth. xii. 1. <S'C.(/) and for one, that passed
through a vineyard, or oliveyard,to gather, and eat without carrying
away. Dent, xxiii., 24, 25.
2. By the lihodian law,(/r) and the common maritime custom, if
(c) Britlon. cap. 10. Crompt. 33. a. Plowd. 18. b. 19. a. Dalt. Just. cap. 99.
(/) Sec Dallujt nln supra. (g) 43 Eliz. cap, 2. Sfc.
{h) But tliuir oidiiuiry i)iinisliincrit Ijcingr onl}' jiccnniiiry could aftVct liim only when
he was in a condition to answer it; and tlierel'ore llie same reasons, which would justifj'
that, can by no means be extended to a corporal, niucli less to a capital punishment.
(i) For the Pharisees objected ajruinst it only on account of its being done on the
subhiith day. Mark xi. 23. «lyc. huke vi. 1. ^c.
(k) Vide Dig. Lib. XIV. tit. 2. de lege Jihudia de jaciu, I. 2. § 2. in fine. Leg. Gu-
lielmi Conquest, cap. 38.
HISTORIA PLACItORUJVI CORONA. 55
the common provision for the ship's company fail, the master may
under certain temperaments break open (he private chests of the
mariners or passengers, and make a distribution of that particular
and private provision for the preservation of the ship's company.
Vide Consolato del Mare, cap. 256. (l) Les ciistomes de la Mere,
;;. 77.
3. Nay, I find, among our Ens^Ush voyages to the West-Indies
described by Hackluit, that it was a received custom, that if a ship
wanted Jiecessaries, and the inhabitants of tlie continent would not
furnish them for nioney, they might, by the usage of the sea and
nations, take provision by force, making the inhabitants reasonable
satisfaction; ibr in these cases the common consent of nations hath,
made it lawful, and therefore it is lawful; 1. because ne-
cessary in extremity; 2. because there are no other means [ 56 "]
to obtain it by an application to superiors; but were this
done by English mariners upon the English shore, where both are
inider the same civil magistrate the case would be otherwise, because
capable of another remedy.
It is not lawful voluntarily to assist the king's enemies with money
or provision, for it is an adhering to the king's enemies, and so trea-
son within the letter of the statute of 25 E. 3. but yet, if the king's
enemies come into a county with a power too strong for the county
to resist, and will plunder the country, unless a composition be made
with them, sucli a ransoming of themselves is so far from being trea-
son, that it hath been allowed as lawful. 1. In respect of the ex-
treme necessity. 2. Because it is a less detriment to the country,
and a less supply to the enemy, than that plunder would be; and for
that purpose I shall set down the case at large.
M. 14 E. 2. B. R. Rot. 60. Diinelm. " Placitum de transgress,
coram Jl. D. de Brome & sociis suis justiciariis domini Regis in epis-
copatu Dunelm. sede vacante anno decimo regni sni mittitur hue
propter errores, &c. Juratores dicnnt, quod Scoti inimici &: rebelles
regis prsedict. die JNIartis in festo Sanct* Catharinse virginis anno
regni regis nunc nono ingressi fuerunt terram episcopatus Dunelm.
ea de causEt, ut ipsam destruerent, & quod omnes de communitate
episcopatus preedicti tunc apud Dunelm. existentes, volentes prasca-
vere dictorum inimicorum malitiam, ordinarunt, quod unusquisque
illornm praestarent sacramentum corporate stare ordinationi,qua3 pro
proficuo communitatis pra^dictee contingeret ordinari, qui quideni
fyHlielmiis de Heberne jurat' fuit cum aliis, &c. Item quod post
oonsuhierunt facere finem cum prsedictis inimicis, &cum eis fecerunt
fiuem de mille & sexcent' marc'; quam quidem summam oporteret
solvi incontinent! per quod, quia non habuerunt pecuniam presto,
ordinarunt, quod quidarn de communitate prasdicta irent de domo in
donuim infra ball,' Dunehn. &. extra, & perscrutarent ubi denarii
ossent in deposito, & ubicunq; denarii hujusmodi invenirentur, ca-
perentur ad solutionem dicti finis fesiinand', quousq; levari possit
{I) Printed at Venice 1584, in 4to.
VOL. I. — S
67 HISTORIA PLACITORUM CORONiE.
de coinmiinitat. prccdict. &• satisfieri illis, quorum denarii sic ca-
piendi fiierunt; et quod prajdictus JVillielnms de Kellaioe simul
cum quodam Dovid de Rofheber jurat' ad perscrutandum in forma
prsedicta venit ad prsedictas domos, & cistam & 70l. de propriis de-
nariis ipsius WilUelmi de Heberne in cista prcedicta inventas cepit
& asportavit, &c. Et juratores requisiti, si prasdictus Willielmus
de Heberne consentiebat captioni prsedictorum denariorura, dicunt,
quod non, & quia compertum est, &c. quod ubi praedicta ordinatio
fuit facta de denariis in deposito perscrutand' & capiend', praedict'
Willielmus de Kellawe simul, &c, cepit denarios praedict', qui fue-
runt in domo & propria custodia prsedicti WilUelmi de Heberne &
contra voluntatem suam, & etiam pro eo, quod videtur curiae, quod
prasdict' Willielmus de Heberne omnino esset sine recuperare, quoad
denar' suos prasdici', nisi esset versus praefat' WitUelmum de KeU
laive, &c. qui praedictos denarios in forma prasdicta cepit & aspor-
tavit, consideratum est, quod praedict' Willielmus de Heberne recu-
peret versus praedict' Willielmum de Kellawe praedictos denarios &
dampna sua, quae taxantur ad c. s. & idem Willielmus de Kellawe.
committatur gaolas, &c. praetextu.cujus recordi ad sectam praedicti
WilUelmi de Kellatve, asserentis errores & defectus in praedictis re-
cordo and processu interesse,mandatum fuit episcopo Dunelm. quod
scire fac' prsdicto Willielmo de Heberne, &c, qui non venit.
" Ideo processum est ad examinationem recordi per ejus defaltum,
& assignat hos errores; primum, quod nihil fecit contra pacem regis,
nee denarios illos cepit vi & armis, maxime cum praedictus Williel-
mus de Heberne juratas fuit stare ordinationi praedictae, & quod
ipse Willielmus de Kellaiue per sacramentum pra^hibitum injunctus
fuit scrutari & denarios praedictos capere; & non est consonuin, quod
dictus Heberne recuperaret praedictos denarios & dampnum contra
assensum & juramentum suum proprium, nee quod ipse Kellawe
committeretur goalae.
" Item in lioc quod justic' fundaverunt judicium suum, quod dictus
Heberne non posset habere suum recuperare de denariis praedictis,
cum iUud habere posset directe versus commun-itatem vir-
r 58 ] tute ordinationis & concessionis praxlictarum, &c. ob quoe
errores hie in judicio recitalos consideratum est, quod erro-
nict; in primo judicio processum est, & quod idem Kellaioe a gaola
deliberetur, & totus processus evacuetur, &c."
Ill Pasch. 15 Rot. 17. " Patet, quod Scoti cum hominibus de
Rippon similiter concordarunt pro mille marc', ne villa comburetur."
Nota, this was an act done for the security of the country in a
time of actual war and invasion by enemies, and tlierefore rendered
that by-law and the execution thereof justifiable by reason of that
necessity, which would hardly have done it in time of peace. 2. But
that, wliich this record princijially evidenceth, is, that such a supply
of the king's enemies upon such a necessity in a time of war, and
to prevent the devastation of the country, was not taken at all to be
an adhering to, or treasonable aiding of tlie king's enemies."
HISTORIA PLACITORUM CORONiE. 58
CHAPTER X.
CONCERNIXG THE OFFENCE OF HIGH TREASON, THE PERSON AGAINST
WHOM C03IMITTED, AND THE REASON OP THE GREATNESS OP
THE OFFENCE ; AND TOUCHING ALLIGEANCE.
Having premised these general observations relating to all crimes,
that are capital, and their punishments, I shall now descend to con-
sider of capital crimes particularly, and therein first of high treason.
And yet, before I descend to the particulars thereof, I shall premise
also some things in general touching alligeance, since the specifica-
tion of this otlence consists principally in this aggravation, thai it is
contra li^eantise sux debitum.
The offence of high treason is an offence, that more im-
mediately is against the person or government of the king ; [ 59 ]
and the greatness of the offence, and the severity of the
punishment is upon these two reasons.
1. Because the safety, peace, and tranquillity of the kingdom is
highly concerned in the safety and preservation of the person, dignity,
and government of the king; and therefore the laws of the kingdom
have given all possible security to the king's person and government
under the severest penalties.
2. Because as the subject hath his protection from the king and his
laws, so on the other side the subject is bound by his alligeance to be
true and faithful to the king ; and hence all indictments of high trea-
son run prodilorie, as a breach of the trust, that is owing to the king;
contra ligeantias sux debitum, agamst that faith and alligeance he
owes to the king, and contra paceni domini regis, coronam, 4* digni-
tatem ejus.
And hence it is, that if an alien enemy come into this kingdom
hostilely to invade it, if he be taken, he shall be dealt with as an
enemy, but not as a traitor, because he violates no trust nor allige-
ance: resolved in the lord flerise'scgise. Co. P. C. cap. Ip. ll.l Co.
Hep. 6. a. Perkin fFarbeetc's case.
But if an alien, the subject of a foreign prince in aniity with the
king, live liere, and enjoy the benefit of the king's protection, and
commit a treason, he shall be judged and executed, as a traitor ; for
he owes a local allegiance. 7 Co. Rep. 6. the case o/Stephano Fer-
rara(a) a Portuguese ; and the indictment shall not run contra natu-
raltm dominum, but contra dominum snum, and conclude contra
ligeantix sux debitum; and such an alien was compellable to take
the oath of alligeance m.the leet. 2 Co. Instit.p. 121. (A)
If a merchant, subject of a foreign prince in hostility with our
king, come hither, after the war begun, without the king's license, or
safe-conduct, such a person may be dealt with as an enemy, viz.
taken, and ransomed. Mag. Chart, cap. 30. (c)
(a) And Emanuel Lewis Tinoco. Hill. 36 Elix. Dyer. 145.
(6) Mirroir de justice, cup. 5. § 1. ?j. 6. (f) Co. Instit. 58.
60 HISTORIA PLACITORUM CORONA.
By that statute merchants of a hostile country found hi
[ 60 ] this realm at the heginniug of the war shall be attached
without harm to their body or goods, till it be known, how
the English merchants are used in the hostile country; and if the
English merchants be well used there, theirs shall be likewise used
here ; so that in this case such merchants, though alien enemies,
have the benefit of the king's protection, and so owe a local alli-
geance, which, if they violate, they may be dealt with as traitors,
not as enemies, for they have the advantage of the king's protec-
tion, as well as his other subjects ; yea, it seems also, that if the sub-
ject of a foreign prince lives here as a private man, and then war is
proclaimed betwixt our king and that foreign prince, and yet that
alien continues here in England without returning to his natural
sovereign, but under the cover and protection of the king of England
commits a treason, he shall be judged and executed as a traitor; for
by continuing here he continues the owning of his former local
alligeance.[l]
Yet for greater security in the times of hostility between this and
foreign kingdoms, especially that of France, there went out precepts
under the great seal to arrest all those of that hostile kingdom, until
they gave security, quodse bene gereni erga regeni, Sf quod sua bona
non transferent sine Ucentid regis, Sf quod literas ant nuncios non
miltent ad partes externas, nee aliquid contra pnceni atlemptubunf.
Rot. Vascon. 18 E. II. M. 24, 23 <5'21. Borso. And sometimes those
aliens were constrained actually to swear fealty to the crown of
England in the times of hostility, and thereby to superadd an actual
alligeance to that local alligeance, which they had being under the
king's protection as subjects, though in truth they were the natural
subjects of the hostile prince. Pat. 14. H. Q. part. 2. m. 34 4' 35. and
[I] If an alien residing and receiving- protection in England should, after the com-
mencement of a war between the English king and the alien's sovereign, go over to his
native country, but leave his family and effects in England, and adhere to her enemies
(the alien's countrymen) in acts or purposes of hostility, he may be dealt with as a trai-
tor. Tills rule was laid down by all the judges assembled at queen vlnwe's command,
January 12th, 1707. And they laid in that resolution a considerable stress on the
queen's declaration of war, in which she expressly took under her protection the persons
and estates of the subjects of France and Spain (with whom she was at war) residing ia
England, and demeaning themselves dutil'ully, and not corresponding with the enemy ;
for by that declaration these aliens were put under a kind of safe-conduct, and enabled
to acquire chattels and to maintain actions for the recovery of their personal rights in as
full a manner as alien friends may. Font. Disc. 1, sect. 4, Sec also Rix v. De la Muttc,
21 Howell's St. Tr. G87; 1 East. F. C. 53 ; Salk. 46 ; Latw. 34 ; Lord Raym. 282.
Aiicfi enemies, resident in the country, may sue and be sued as in time of peace ; for
protection to their jjcrsons and property is due, and implied from the |)crmission to them
to remain, witiiout being ordeicd out of the country by the l*resident of the United States.
The lawful residence does, pro hac vice, relieve the alien from the character of an enemy,
and entitles his person and property to protection. 2 Kent's Com. 63 ; Dauhigny v.
Darellon, 2 Anst. 462 ; Clark v. Marcy, lU Johns. Rep. 69 ; llussel v.Skipwith, 6 Jiinn.
Rep. 241. But it is a|)preliende(l that such a person, tiie moment he quits the country,
even though he leaves liis family and etl'eets bchitid, becomes an enemy, and conscquetitly
incapable of committing treasr)n against the United Slates, unless |)erhaps himself, his
family, and his efl'oets, were taken expressly under the protection of the United Slates,
as in the case above stated from Foster.
HISTORIA PLACITORUM CORONJ^. 60
if they refused, were either imprisoned, or expelled the kingdom. [2]
Vide infra cap. 15,
And upon the same account it is, that though there be an usurper
of the crown, yet it is treason for any subject, while the usurper is ia
full possession of the sovereignty, to practise treason against his per-
son ; and therefore, although the true prince regain the sovereignty,
yet such attempts against the usurper in compassing his death have
been punished as treason, unless they were attempts made in
the right of the rightful prince, or in aid or assistance of him, [ 61 ]
because of the breach of ligeance, that was temporarily due
to him, that was king de facto; and thus it was done A E. A. 9 E. 4.
\,{d) though H. 6. wasdeclared an usurper by act of parliament 1 E.
4. and therefore king Edivard IV. punished Ralph Grey with de-
gradation, as well as death, not only for^lis rebellion against himself,
but also pur cause de son jjerjury 4* doubleness, qii'il avoil fait al
roy H. 6. 4 E. 4. 20.
And because high treason is said to be contra ligeantise debitiim,
it will not be amiss to premise something touching alligeance and its
kinds, referring myself to 7 Co. Rep. Calvin's case, in relation to
what is here omitted touching it.
Alligeance therefore due to the king is of two kinds: 1. Original,
virtual, and implied. 2. Exprest, and declared by oaths or pro-
mises.[3]
The virtual or implied alligeance is that, which the subject owes
to his sovereign antecedently to any express promise, oath, or engage-
ment; this is that, which the Custumer de Normandie mentions cap.
13. Aliance & la loyaulte de tons ses homes de toute la contree, par
quoy ils sont tenus a lui donner conseil &ayde de leurs propres corps
contre toutespersonnes qui peuvent viver & mouryr&soy garderde lui
nuyre en toutes choses ne de soustenir in aulcune chose la partie de
ceulx qui parlent contre luy.
And from the breach of this original ligeance ariseth, the crime of
treason, though the person committing it never promised or swore
faith or alligeance to his prince : for as the king by the very descent of
the crown is fully invested with the right of sovereignty before his
coronation, (which is only a magnificent solemnity[4] attending that,
which is before settled in the prince by the descent of the crown,) so
the subject is bound to his king by an intrinsic alligeance before the
superinduction of those express bonds of oath, homage, and fealty,
which were instituted for the belter securing thereof.
And this alligeance is either natural from all that are sub-
jects born within the king's alligeance; or local, which [ 62 ]
('/) It was not done in this case, but only it is said by the counsel, that it may bo
done.
[~] In the United States, an alien enemy is not permitted to make the declaration
required by law, preparatory to the naturalization of aliens. Ex parte Newman, 3
Oallis. C. C. R.l].
[3] 1 m. Com. 3G6. 1 East, P. C. 49. 2 Kent's com. 39.
[4] .See Fust. ia9.
62 HISTORIA PLACITORUM CORONA.
obligeth all that are resident within the king's dominions, and partake
of the benefit of the king's protection, althongh strangers born.
The breach of this primitive or virtual ahigeance is that, which is
Called high treason ; what shall be said of breach of this alligeance,
so as to make a person guilty of treason, shall be shown hereafter.
The express or explicit alligeance consists in certain promises,
oaths, or professions attesting and witnessing that alligeance, and
instituted for the farther security thereof: and they are of two kinds;
first, those, which were anciently instituted by the Common law,
namely the oath of fidelity and alligeance, and the profession of lige
homage : and such, as are instituted by act of parliament, namely the
oath of supremacy instituted by the statute of 1 Eliz.,{e) and the
oath of obedience instituted by the statutes of 3 J(icobi.{f) Some-
thing I shall say of all these.
The oath of fidelity or fealty is of two kinds: 1 That which is due
by tenure, whether of the king, or of mesne lords, which is ratione
feodi vel vassalagii, and hath a special relation to the lands so held,
and is set down by Littleton, § 19. " Hear ye, my lord, I shall be
faithful and loyal, and faith to you shall bear for the tenements,
which I claim to hold of you, and I shall lawfully do to you the cus-
toms and services, which I ought to do at the terms assigned. So
help nie God»^
Touching this feudal fealty, or fealty by reason of tenure, I have
not much to do in this place. The other kind of fealty is that oath,
which is called Jidelitns lii2;ea, or alligeance, and performed only to
a sovereign prince, and therefore regularly ought to be performed by
fall men above the age of twelve years, whether they hold any lands
or not. The tenor of this oath according to Fleta, Lib. III.
[ 63 "l cap. 16,(g-) runs thus: "Hoc auditis, circumstantes, quod
fidem regi portabo de vita, & membris, & terreno honore, &
arma contra ipsum non portabo: sic me Deus, &c."
According to Briton, v^ho wrote about 5 E. 1 cap. 29. (which is
also mentioned in Cali'in''s case, 7 Co. Rep. 6.) the common form of
the oath of alligeance taken in leets runs thus: "Ceo oyes vous A1
bailife, que jeo Jl. de ceo jour en avaunt serray feal, & leal a nostre
seigniour E. roy d'Angleterre, & a ses heires, & foy & lealte lui por-
teray de vie, & de membre, & de terrien honour, & que jeo lour mal,
lie lour damage, ne saveray, ne orray, que jeo ne le defeiidray a moii
(e) Cap. 1.
(/) Cup. 4. [ Vide 7 Jac. I. cap. 2. Sf. G. 13 Car. II. St. 2. cap. I. 13. ^- 14 Car. II. cap.
3 ^- 4. 25 Car. II. cap. 2. '60. Cur. li. »S7. 2. cap. 1.] But these oaths are abrop;ite(l by 1
W. Sf M. Scss. 1. cap. 1 «V 8. and new ones appointed in thcir_,|ooai ; sec 1 W. 6f M. Sess.
2. cap. 2. § 3. and 3 W. S( M. cup. 2. 13 W. 3. cap. 6. 1 AnncB, cap. 22. 4. AnucCy cap.
8. 6 Annas, cap. 7. 14. 23. 1 Gto. 1. cap. 13, i^-c.[3]
(g) Sect. 22.
[5] See also the oath of abjuration, 6 Geo. 3. c. 53. Tlie Declaration ag^ainst Tran,
eui).slaniiation, 10 Geo. 4. c. 7. Aflimiations of Quakers and Moravians, 9 Geo. 4. c. 32.
3. & 4 IV. 4. c. 4y. 1 & 2 Vict. cc. 5. 15. 77. AHirinatious of Separatists, 3 &. 4. W.
4. c. 82,
HISTORIA PLACITORUM CORONA. 63
poyer: si moy eyde Dieu & les Seyntz." This is the form of tlie
ancient oath of alhgeance, or fidehty to the king, and as it is used at
this day; and he that is minded to see the antiquity of it, may read
thereof 7 Co. Rep. 7. Calvin's case, Spe/man^s Gloss. Titiilo Fide-
litas, which carry it up as high as king Jirlhnr ; more particularly it
was established by the laws of the Confessor, {/^) and by the laws of
king William I. quod vide in Spicilegiis Seldeni ad Edmerum le^e
52,{i) "Statuimus, ut omnes Uberi homines foedere & sacramento
affirment, quod intra & extra universum regnum Anglia3 JVilUelmo
regi domino suo fideles esse volunt, terras & honores illius omiii
fidelitate ubique servare cum co & contra inimicos & alienigeiias
defendere."(A^)
And herein the prudence of the Common law is observable ; the
ancient oath of alligeance, 1, was short, and plain, not entangled with
long and intricate clauses or declarations, but the sense of it is obvi-
ous to the most common understanding; and yet, 2, it is comprehen-
sive of the whole duty of the subject to his prince, and therefore
hath obtained for above six hundred years in this kingdom ; and if
any difficulties should occur in the sense or extent thereof,
length of time and long experience and practice hath suf- [ 64 ]]
ficiently expounded it.
I shall subjoin some observables concerning this oath, which indeed
explain that implied and virtual alligeance, whereof before.
1. By whom this oath is to be taken : It is to be taken by all per-
sons above the age of twelve years, whether denizens or aliens, 2 Co.
Instil.])' 121, except women, earls, prelates, barons, and men of
religion, according to Brillon., cap. 12. which exception is not to be
absolutely and universally understood ; for all persons above the age
of twelve years are bound to take this oath of alligeance, except
women, as shall be shown, but not in the same manner or place, as
others; but because regularly this oath was to be taken in the leet,
or at least in the sheriff's turn, which is in nature of a leet, where
earls, barons, prelates, and men of religion were not bound to do
their suit, therefore by the statute of Marlbr. cap. 10, is this excep-
tion added : but yet at other times and in other places men of reli-
gion and noblemen were to take it: as shall be shown.
It differs from the oath of fealty performed to the king by tenure,
for that includes somewhat more, and somewhat less ; and according to
Britton cap. 68.(/) runs thus when performed to the king : " Ceo oyes
vous bone gents qe jeo J. S. foy a nostre seignior le roy Edward
porterai de ceo jour en auaunt de vie & de membre, de cors & de
chateux, & de terrene honor, & les services qe a lui appendent de
(/() i. 35. but these laws are evidently spurious, and seem to be tlie composition of some
lawyer alter the reign of William II. Vide Hiclusii Dissert. Epist. p. [)5. and even in tiie
best MS. copies of these laws the legendary account of king Arthur is omitted.
(i) Vide Leg. Angln-Six. Edit. Wilkins. p. 228. Edit. Lambard, p. 170.
(A) 1 ide axsisas Henrici regis facias apud Clarendon dc renovutus apud Northampton.
Hoveden, p. 314. Edit. Savil.
(/) § 47^.
64 HISTORIA PLACITORUM CORONA.
fees & de tenements, qne jeo teigne de lui, leanment les ferray as
termes dues a mon poer : si moy ayde Dieu & les Seyniz, &c."
Now, besides this oath of fealty or ailigeance to the king, there
were anciently certain oaths administered to persons of a different
age; but these have been long disused, as namely, that, which Brit-
ton mentions ca/?. 12. viz. that all above the age of fourteen years,(7??.)
should swear to be true and foithful to the king, and that they should
not be felons nor assenters to felons, excepting men of religion, wo-
men, clerks, knights, and their eldest sons;(?i) and of the like
[ 65 ] nature was that oath appointed by king Henry III. to be
taken by all men above fifteen years, consisting of divers
particulars in order to the preservation of the peace, and mentioned
at large by Bracton, Lib. III. Tract. 2. cap. 1. f/e Corona; both
which it seems were temporary provisions for preservation of the
peace, and therefore administered to persons above fourteen and
fifteen years, and diifered from this settled oath of ailigeance above
mentioned.
2. What kind of oath of fidelity this is: As there is homagium
ligeum, and homagium simplex, so there \s fidelilas ligea and Jide-
litas simplex; this, that is performed to the king, is jidelitas ligea,
and differs from the later, 1. In that this is performed to a king, the
other to a mesne lord. 2. This is performed without relation to any
tenure of lands. 3. This is without exception of the fidelity to any
person, that is always salvd fide S^- ligeantid domini regis.
Yet there seems to be a double kind of lige fealty, [6] as where
there is a prince, that is subordinate to another, and yet hath jura
summi imperii over his subjects : such was the king of Scots, whilst
in some times of Edward I. and Edivard III. he was in subjection to
the crown of England ; such was the prince of Wales before the
conquest thereof by Edward I. and the full union of it to the crown
o( England ; and thus it was in many investitutes made formerly
by the kings of England: for instance anno 35 H. 3. when that
king gave to his son Edward the principality of Gascoigne in
France, so that the great men of that coxxnlXY fecerunt ei homa-
gium Si' fidelitatis jar amentum ; yet Matthew Paris(o) tells us,
that dominus rex tamen sibi retinuit principale dominium, scili-
cet ligeantiam.
The like was done by E. 3. when Rot. Vascon. 36 E. 3. m. IS.
the king had given to the Black Prince the principality oi t^quitain
(to) This probably should be twelve years. Sec 2 Co. Instil. 147. Vide supra in
notis, p. 24.
{n) Tliis exception seems not to relate to the oath, but to the being in a decenna or
titliin^. The whole piissa^ro runs thus : " Volons nous, que trcs tous eeux de xiiii ans de
southe nous facent le sereuicnt, que ils nous firrount f'ealx & leaux, & que lis ne ser-
rount fuions, ne a (lions asscntauiits, & volons, (pie tout/, soierit cndizcyne, & plevys par
dcseyners, sauvc gentz de religion, clers & chivalers & lours litz cynes, & femes."
(0) p. 845.
[C] Sec Anstei/s Cons, of Engl. 92.
HISTORIA PLACITORUM CORON.^. 65
with a regal jurisdiction, viz. merum 4* mixtum imperium,
so that ill relation to the subjects of Jlquitaia he was in [ 66 1
nature of a sovereign; yet the iiing not only reserv^ed hortia-
gium ligeiim to be performed to him by the prince, but also reserved
his own sovereignty, viz. Dominio directo c^* superioritate 7iobis
semper specialiler reservatis: by reason whereof tlie king did not
only substitute his delegates or judges de la sovereignty et de resort
to receive appeals from the prince, as appears by INIr. Seidell's Tit.
Honoris, part 2. cap. 3. § 4. but was intitled to a.superior alligeance
of all the subjects of Jlquitain: so that here were two alligeances;
one due to the prince, which was qualified and restrained, salva fide
regis; and the other absolute, which was due to the king as
supreme. [7]
Again, when in the year 1170, Hen. 2. by consent of parlia-
ment,{p) as it seems, (for otherwise it could not be done,) made his
eldest son king of England; so that there was rex pater, and rex
filius, yet he reserved to himself the supreme alligeance of all his
subjects: " Et in crastino coronationis illius rex pater fecit Williel-
miirn regem Scotorum, & Davideni fratrem suum, & comites, &
barones regni devenire homines novi regis, & jurare ei fidelitateni
contra omnes homines, salva fidelitate sua;" Quod vide apud Hove-
den sub eodem anno,(y) and the instrument itself at large apud
Brampton, p. 1104:(r) " Hasc est conventio & finis, quae Williel-
mus rex Scotias fecit cum domino suo Henrico rege Anglias filio
Matildis imperatricis, viz. quoddictus IVilliehnus xqx Scotiae devenit
homo ligeiis domini regis x'Vngliae contra omnem hominem de Scotia,
& de omnibus terris suis aliis, & fidelitatem ei fecit, ut ligeo domino
suo, sicut alii homines suo principi facere solent ; similiter fecit;
homagium Henrico filio suo, &. fidelitatem, salva fidelitate domini
regis patris sui, &c. Comites & barones de terra regis Scotiae, de qui-
bus dominus rex Angliae homagium habere voluerit, facient ei homa-
gium contra omnem hominem, & fidelitatem, ut ligeo
domino suo, sicut alii homines sui ei facere solent, & Hen- [ 67 1
rico regi filio suo &. haeredibus suis, salva fidelitate domini
regis patris sui."
Here was first the supreme king, namely rex pater, who did not
oust himself of his regality, as some have mistaken, but had the sove-
reignty still, for he reserved his ligeance tVom the new king, and from
all his subjects; yea, and in farther testimony thereof, the rex filius
in the year 1175, did his father lige homage, and swore alligeance
contra omnes homines, as appears by Hoveden. Secondly, Here is
a subordinate king, rex filius, who, though in relation to his father
(p) Hoveden sub anno 1170, Brompton,p. 1061.
(7) Et sub anno 1175.
(r) Et in libra rubra scaccariijol. CLXVI. Sf Rymer's Faedera, vol. I. p. 39, ex magna
rotulo penes Camerar\
[7] The citizens of the United States owe a double allegiance; first, to the United
Stales, and then to the State of whicli they are citizens. 2 Kent's Cum. 43.
VOL. I. — 9
67 HISTORIA PLACITORUM CORONA.
he was a subject, yet in relation to his subjects, and particularly to
the king of Scots, was a sovereign. ThircUij, Here is yet another
subordinate king, IVilUam, the king of Scots, who was a sovereign
in relation to his subjects ; and altho there was an alligeance or
Jideliius ligea due by the subjects of Scotland to their king William,
yet it was salvd fidelitate to the kings of England, father and son ;
and tho there was a lige fealty due to rex Jilius, yet it was salvd
fide regis patris; but the fidelity or alligeance to the rex pater was
ipmely fidelitas ligea, for it had no exception.
3. The third observable upon this oath of alligeance is, that it is
not only applicable to the politic capacity of the king, but to thq
person of the king, as well as to his office, or capacity; and for the
misapplication of the alligeance to the jegal capacity or crown, ex-
clusive of the person of the king, among other things the Spencers
were banished. T^^ide Judicium inde in Veteri Magna Chartd, ^-
7 Rep. 11. Calvin's case, for the oath is to be applied to the person
of the king, as well as his crown.
4. That in all oaths of fealty, as likewise in the profession of ho-
mage to any inferior or subordinate lord or prince, it must be salvd
fide 4' ligeantid domini regis; and to omit this saving, is punisha-
ble in such lord: see for this, the notable Record of 6 E. 1. against
the bishop of Exeter, Co. Lilt. § S5,{s) and it is no more than is used
in other kingdoms. Vide Spelm. in titulo Fidelitas. The emperor
Frederic Barbarossa in the year 1152, made a law that within his
empire in omni sacramento fidelitatis imperator nomina-
[ 68 3 ^^^^ excipiatur, which obtained presently the like observa-
tion in all other countries, and accordingly is the Ciistumer
de Normandy , cap. 29 t^^ Glossa, 2 da. Ibidem.
5. That tho there may be due from the same person subordi-
nate alligeances, which tho they are not without an exception of
the fidelity due to the superior prince, yet are in their kind sacramento,
ligea fidelitatis, or subordinate alligeances, yet there cannot, or at
least should not be two or more co-ordinate absolute ligeances by
one person to several independent or absolute princes; for that law-
ful prince, tiiat hath the prior obligation of alligeance from his sub-
ject, caiuiot lose that interest without his own consent by his subject's
resigning himself to the subjection of another; and hence it is, that
the natural-born subject of one prince cannot by swearing alligeance
10 another prince put off or discharge him from that natural allige-
ance; for this natural alligeance was intrinsic and primitive, and an-
tecedent to the other, and cannot be devested williout the concurrent
act of that prince to whom it was first due :[S] indeed, the subject of
(s) p. 65, a. b.
[8] In liis lectures on the Laws and Constilntion of Englarid, p. 94, Mr. Anstey thus
speaks : "Upon no better foundation than the speculation of a Publicist, it has been as-
sumed, that the rights of the subject arc so thoroug'hly reciprocal, Ihat, where the one
ceases or is suspended, the other ceases and is suspended too: and that the one cannot be
lessened and impaired, witiiout the other bcin;yr weakened in proportion. Such positions
arc unknown to the kws of England. It is not from compact or reciprocity but fiora
HISTORIA PLACITORUM CORONA. 68
a prince, to whom he owes alHgeance, may entangle himself by his
iibsolute subjecting himself to another prince, which may bring
him into great straits; but he cannot by such a subjection devest the
right of subjection and aUfgeance, that he first owed to his lawful
prince. (^) [9]
It appears by Bradon, Lib. V. cap. 2A,{u) that there were very
many, that had been anciently ad Fideni regis Jlnglx <5' Fraiicise,
especially before (he loss of Normandy; such were the comes mares-
callus that usually lived in England, and M. de Feynes manens in
Francid, who were ad Jidem tilriiisgue regis, but they ever ordered
their homages and fealties so, that they swore or professed ligeance or
lige homage only to one ; and the homage they performed to the
other, was not purely lige homage, hut vather feudal, as shall be
shewn more hereafter : and therefore when war happened between
the two crowns, remaneai personaliti^rquilibet eortcm cum
€0, cut fecerat ligeandam, S,' facial serviliuni dehiluni ei, [ 69 ]]
cum quo non stetcrat in persona, namely, the service due
from the feud or fee he holds: but this did not always satisfy the
prince, cum quo non sleterat in persona, but their possessions were
(<) The case here put by our autlior is evidently meant of a private subject's swearing
alligeance to a foreign prince, and lias no relation to a national withdrawing alligeance
from a prince, who has abdicated the throne.
(u) Traclat 5. De Exceptionibus.
birth, that the Queen's claim to subjection and her subject's claim to liberties arise. Both
claims spring together and from the same source. The subject's life is the natural term
of both. Yet it is always possible that one of them may be determined incidentajly and
before its time. The subject may forfeit his liberties, or the Queen may by her own act,
withdraw him from her subjection. In the first case, the Queen is not deprived of her
Fubjfct, notwithstanding his forfeiture of right. In the second case, albeit, no longer de
facto true and lawful, he still retains the rights wiiich were vested in him by his birth.
Tliere is, indeed, a close connexion between this fallacy and the proposition of -American
jurists — false as we have seen it to be — that it is in the power of the citizen to renounce
his alligeance, and without ihe consent of Ijis sovereign, to take upon hin self, in all
respects, the character and rights of a citizen of a foreign state. To this pretension it is
once f()r all to be replied, that the eliaracter of a British subject — once vested by birth —
cannot be extinguished or suspended by the mere adoption of any foreign allegiance.
The party may withdraw himself from the local obedience and protection of his sove-
reign, and yet not cease to be within her actual obedience and protection. {Calvin's Case,
7 Rep. 8.0.) He may place himself beyond the jurisdiction of the public justice of his
country, and thus forego its benefits; but he cannot place himself be}'ond the jurisdic-
tion of the executive power. The Queen's remedial writs cannot by any means extend
into his foreign domicil; but those that are mandatory and not remedial, do reach him
even there. TJiey arc not tied to any place, but do follow subjection and ligeance in
what country or nation soever the subject is. (7 Rep. 20. a.) Amittit regnum sed non
Rcgem. Amittit patriam, sed non patrem patria." (7 Id. 2. b.) See 2 Kent's Com.
43.49.
[9] The doctrine of perpetual allegiance is riot applied by the British courts to the Arneri-
can ante nati-. Their doctrine is, that the American ante nnti, by remaining in America
alter the peace, lost their character of British subjects; and our rule is, that by witlidraw-
ing from this country and adhering to the Brit'sh government, they lost, or rather never ac-
quired the character of American citizens. The right of election in all revolutions like
that of America is well cstablislied. IngUs v. The Sailor's Smiff Harbour, 3 Peters, 99.
The Revolution severed the ties of allegiance; and made the inhabitants of each country
aliens to the other. 3 Story on Cons. 571.
69 mSTORIA PLACITORUM CORONvE.
usually seized, and rarely or not without difficulty restored without a
capitulation to that purpose between the two crowns. Vide Clause.
15 H. 3. m.2l. pro Henrico de la Vagnr, Clans. 20 H. 3. m. 1. pro
Simone Montford ixnd Placita Pari. IS E. \,{cc) the petition ofjhe
earl of Eive in France for the castles of Hasting and Tikchiul is
answered, " Quandocunque placuerit domino regi Franciae terras &
tencmenta honiinibus istius regni restituere, quee sua fuerunt, in po-
testate ipsius domini regio, quod ipse dominusrex Jinglise de castris
& terris prsedictis preedicto comiti reddendis faciet, quod de consilio
suo viderit esse faciendum."
But sometimes it fell out, that the inconsiderateness of persons
carried them upon presumptions of some advantages to make alli-
geance to both princes; and then the successes of either side ren-
dered them within the penalty of the breach of alligeance to the
adverse party.
Peter Brian had tlie earldom of Pichmond here in England, and
held it of the crown of Engla)id,and the duchy oi Britany in France,
■which was held of the crown o{ France, (though Brompton tells us,
that by an agreement between Richard I. and the king of France
sub anno 1191.(y) the seigniory thereof was bestowed upon the
king of England) he was an homager of the crown of France, and
iipon some agreement between him and the king of England touch-
ing a war with France, he came into England, and, as it seems,
swore fealty to the crown of England; but afterwards he fell in
again with the king of France, and betrayed the army of the king
of England, and per internuncios reddidit Anglas regi honiagium;
but he lost himself with both crowns: the king of France disposed
of the duchy oi Brit any to his son, and the king of England ^Q.\e
the earldom of Richmond to Peter de Sabaiidia; tho upon an
exchange he afterwards took it back, and restored it to a
[ 70 ] son of the former earl. 71/. Paris siib anno 1234./?, 406.
and Clans. \9 H. 3 m. 17. dors, where in a letter by the
king to the pope the whole story is related.
After this, John de Breme otherwise Montford descended from
the above-mentioned Peter, falling in with king Edward III. after
his assumption of the title of France, was restored to the duchy of
Britany and earldom of Richmond; and Clans. 19 E. III. p. 1. m.
14. dors, did his lige homage to king Edward III. as king oi France
in these words: " Monseigneur, jeo vous recognoisse droiturell roy
de France, et a vous, come a mon seignior liege et droiturell roy de
France, face mon homage pur le dit duchy de Bretagne, quel jeo
claime tener de vous, mon seignior, et deveigne vostre iiome lige de
vie, et de mcmbre, et de terrene honor, a vivre et morir cquntre touts
gents." His son John de Montford falling back to the king of
France lost the earldom of Richmond by judgment in parliament,
7 R. 2. but entered de recordo. Rot. Pari. 14 R. 2. n. 14.
These ditficulties befel those, that were adfdem utriusqne regis;
{x) Ryley's, Plac. Fad. p. 20. (y, Vide Bioiintov,p. 1106.
HISTORIA PLACITORUM CORONiE. 70
they were sure to be losers on one side, and sometimes on both
sides.
And thus far touching the oath of aUigeance or fea]ty.[10.]
II. The second express obUgation of the subject to his prince is
that of homage.
This, though it be no oath, but a very solemn profession of duty,
yet it hath always fealty performed with it, and after it; for homage
draws with it fealty, which in case of simple homage done to a sub-
ject is with the same exceptions as the homage is; but in case of
hoTnagium ligeum it hath attending upon the performance thereof
fidelilas Ugea, or alligeance.
The kinds of homage are three: 1. Simple, as that which is per-
formed to a mere subject by virtue of his tenure. 2. Homagiiun
ligeum. 3. Homagitirn mixtxim,.
1. The simple homage, which is performed barely by reason of
tenure, is that which Littleton describes both in the words and cere-
monies, Lib. II. tap. \.{z) wherein always there is an exception of
the faith due to the king.
2. Homagium ligeum, which is thus: "Jeo deveigne
vostre home de ceo jour en avant de vy et membre, et de [ 71 ]
terrene honor, el a vous serra foyal et loyal, et foy a vous
portera contre touts gents, qe viure point, ou morierj" this is the
form, that Fleta gives Lib. III. ca. 16.(«)
The ceremony is the same, when done to the king, as when it is
performed to a mesne lord, only Kot. Pari. 18 H. 6. n. 58. the cere-
{z) Sect. 85. (a) Sect. 21.
[10] It has been a question, says Chancellor Kent, frequently and gravely argOed, both
by llieoretical writers, and in forensic discussions, whether the English doctrine of per-
petual allegiance applies in its full extent to this country. The writers on public law
have spoken loosely, but generally in favour of the right of a subject to emigrate, and
abandon his native country, unless there be some positive restraint by law, or he is at
the time in tlie possession of a public trust, or unless his country be in distress, or in
war, and stands in need of his assistance. Cicero regarded it as one of the firmest foun-
dations of Roman liberty, that the Roman citizen had the privilege to stay or renounce
his residence in the state, at pleasure, {Orat. pro Balbo, ch. 13.) The principle which has
been declared in some of our state constitutions, that the citizens have a natural and in-
herent right to emigrate, goes far towards a renunciation of the doctrine of the English
Common Law, as being repugnant to the natural liberty of mankind, provided we are to
consider emigration and expatriation, as words intended in these cases, to be of synony-
mous import. But the allegiance of our citizens is due, not only to the local government
under which they reside, but primarily to the government of the United States; and the
doctrme of final and absolute expatriation requires to be defined wit!) precision, and to
be subjected to certain established limitations, before it can be admitted into our juris-
prudence, as a safe and practicable principle, or laid down broadly as a wise and salutary
rule of national policy. The question has been frequently discussed in the courts of the
Lnited Slates, but it remains to be definitively settled by judicial decision." 2 Com. 43.
He then enters into an analysis of the American cases on the subject, and concludes
thus: " From this historical review of the principal discussions in the Federal Courts on
this interesting subject in American jurisprudence, the better opinion would seem to be,
that a citizen cannot renounce his allegiance to the United States without the permission
of government to be declared by law; and that as tiiere is no existing legislative regula.
tion on the case, the rule of the English Common Law remains unaltered." j>. 49. See
Serg. on Const. 304. Raicle on Const. 96.
71 HISTORIA PLACITORUM CORONA.
mony of kissing the king was dispensed with by reason of the danger
of contagion in time of plague.
And touching this homage these things are observable :
1. It difiers from the oath of alHgeance, in that this is only hy a
profession; but alhgeance is by an oath, though the oath of ailige-
ance also accompany it,
2. It differs in this, that, whereas all men above the age of twelve
years are to take the oath of alligeance, whether they hold land, or
not ; yet lige homage is not to be performed but by three sorts of
persons: 1. Such as hold of the king by homage, which though it be
performed in respect of tenure, yet it is homaghim ligeum, because
performed to the sovereign, and without any exception of the ho-
mage due to inferior lords. 2. Such as are dukes, earls, or viscounts,
or barons, though they hold nothing of the king, yet at the corona-
tion they perform a lige homage; the tenor whereof runs thus:
" I become your liege man of life and limb, and of earthly worship,
and faith and truth I shall bear unto you to live arid die against all
manner of tblk: so God me help!^^ and then he toucheth the crowil,
and then toucheth the ground ; nota, it refers not to any lands, 3, By
prelates or bishops; and this is not only at the coronation of the
king, but after their election, and before the restitution of their tem-
poralities. Vide Statute 25 H. S cap. 20.
Anciently the clergyman quarrelled at the performance of homage
to the prince ; but by the constitutions of Clarendon set down by
Maltheio Paris, p. 101. they were bound to perform it, and it hath
been hitherto practiced ; only to gratify them in something antiently
it was indulged in this manner, viz: "Faciet electus homagium &
fidelitatem regi, sicut ligeo domino suo, de vita, & mem-
j] 72 ] bris, & de honore terreno, salvo ordine suo, priusquam con-
secretur;" and though I do not find this salvo ordine in-
serted in after-times, yet there hath been a temperament added to
that homage performed by clergymen, which it seems satisfied
their scruple, their homage running thus: "I do you homage and
faith, and truth bear unto you, our sovereign lord, and to your heirs
kings of England, and I shall do, and truly acknowledge the service
of the lands, which I claim to hold of you in the right of the church,
as God me help."
And this is fealty, as well as homage, for it is accompanied with
an oath, though it hath the solemnity of genuflexion, and kissing the
king's check.
3. The agreements and differences between that homage, that is
simply feudal, or by reason of tenure only, and this homage, that is
homagium ligcum, are these: 1. Because though homage is not to
be done by any, but those that hold by that service, or by the no-
bility, or clergy, as before: yet when done to the king, it becomes
homagium ligeum in respect of the person to whom it is performed.
2. If it be homage done to the king, it is homagium ligeum, and
hatli no exception of homage due to others. 3. But principally the
diUcrencc is in the eflect of it, wiiich is excellently described by
HISTORIA PLACITORUM CORONiE. 72
Terrien'm his Comment upon the Custumer of Normandy , Lib. III.
cap. 1. Feudal homage, that is simply such, binds only ratione
feodi; therefore if the homager alien, pr deliver to his lord his fief,
or fee, he is discharged of the obligation; but lige homage, tho'
it may be performed by reason of the fee in its kind or species,
yet it principally binds the person; and though the fief itself be
aliened, or transferred to another, yet the obligation of lige homage
continues.
3. There are certain liomages, that are mixt, and partly lige, and
partly not; and they are of two kinds: 1. When the homage is per-
formed to a prince, that is sovereign in relation to his subjects, yet
owes a subjection to some other prince,; this was the case of the
prince of tVales, and the king of Scots before mentioned, the
homage, that they performed to the king of England, was simply
hge homage, as we may read before, and particularly in Walsing-
ham's Ypodigma News triss sub anno 1291,(6) where the
tenor of the homage of John de Baliol king of Scots is en- [ 73 ]
tered in hxc verba : " Domine Edvarde rex Jlnglise, superior
damine regni Scofix,ego Johannes Baliol rex Scoiise recognosco me
hominem vestrum ligeum de toto regno Scoti3e,&L omnibus pertinentiis,
& hiis,quae ad hoc spectant ; quod regnum meum teneo & de jure debeo
& clamito tenere haereditarie, de vobis & hseredibus vesiris regibus
jingliae, de vita & de membris, & de terreno honore contra omnes
homines, qui possunt vivere & mori."
I mention this homage of the king of. Scots not to revive the
ancient controversy touching the subordination of that kingdom to
tliis, for that difference hath been long settled and at peace ; but only
to apply my instances of the various sorts of homages performed by
sovereign princes.
But the homage, that was performed by their subjects to them,
was partly lige homage, and partly not; it was lige homage as to
between the king of Scots and them, and as to all persons in the
world, except the king of England; for the king" of Scots and prince
of Wales had the rights of sovereignty ^to'a imperii as in relation to
their subjects and all others, but the king of England.
But in relation to the king of England, the homage performed
to the prince of Wales or king of Scots was not lige homage ; for
there was an exception either expressed or implied at least salvd
fide domini regis Jinglix,diS appears plainly above.
2. Another instance of a mixt homage is, when a sovereign prince
hath a vassalage, or possession in another absolute prince's do-
minion; this was the case of the king oi England, in relation to the
lordships and seignory he had in France, as Jiquitaine, ^dnjou,
and Picardy,^'c. which were all held of the crown of France; these
descended to king Edward III. the king of France required lige
homage from the king of England for these territories; the king of
England, as king of England, had no dependence on France, and
therefore for the more caution performed to the king of France for
[h) ^1292.p. 477. 479. 480.
73 HISTORY PLACITORUM CORONA.
the dntchy of Jlquitaim and other his possessions in France 5
general homage by these words, "Nous entromysin I'hom-
[ 74 lage de roy de France per ainsi, come nous et nous pre-
decessors dues de Giiyeyi estoient jades enterent en
I'homage des royes de France pur temps esteant;" and aUhough
afterwards a settled form of homage was prescribed in this case,(c)
yet most evident it is, that it was not hornagiimi ligeum, but only a
feudal homage relative to those territories of the crown of France,
but not at alt. with any relation to the person or crown of the king'
of England.
For the Ymg oi England had a double capacity, one as an ab-
solute prince, that owed no subjection to the crown of France; nor
to any other king, or state in the world; in this capacity he neither
did nor could do homage to the king of France ; he had another ca-
pacity, as duke oi Jiquilaine,VLndi in that capacity he owed di feudal,
but not /)er5o?io/_subjection to the crown of France ; and in this latter
capacity only, and as a ditierent person from himself, as king of
England, he did the homage, which was in truth no lige homage,
but a bare feudal homage, which I rather mention to rectify the
mistakes of those that call it a lige homage.
But by the way 1 must observe, this feudal homage, as duke of
K^quitaine, lasted not long ; for in 14 ^. 3 the king of England as-
sumed the title of king of France together with the arms of France
by hereditary descent, which style his successors have ever since
used.
And indeed the name of lige homage from him that was king- of
England, to the king of France, though purely in the capacity of
duke of Aquilaine, sounded so ill, that when a peace was in treaty
between, the king of France and Richard II. viz. rot. pari. \1 R.
2 n. 16. the entry is made, "Fait a remember qe le roy, seigneurs,
chivalers, et justices assenterent en cest parliament a la pees, purensi
cj£ noslre dit seigneur le roy ne face homage lige, et sauant touts dits
le liberty de la person nostre seigneur le roy, et de son royalme de
Angleterre et de ses liges du dit royalme," and with power to resort
to the title of the crown of France, in case of breach of league by
the king of France; this is farther arnplified by the speech made
openly by the speaker of the house of commons. Ibid. n.
[ 75 ] 17. The homage here meant was with relation to the
duchy of Jlquilaine, which upon this treaty was to be de-
hvered to the king of England.
And thus mucli touching these two securilies of the subject's alli-
geance to the king of England, wherein I have been the larger, be-
cause many things occur in this business, that give some light to
antiquity, and do not so commonly occur, and because the great
brand of high treason is, that it is a violation or breach of that sacred
bond from the subject to his king commonly called alligeancc, for
the security whereof this oath of alligeance and lige homage were
(c) Vide Vat. 5 E. 3. i)art 1. m. 17.
HISTORIA PLACITORUM CORONA. 75
instituted, and effectually expounds the obligation, and duty of that
allig^ance, that is due from the subject to the king.
fshall now only mention those two eminent oaths of supremacy,
and obedience, though there were besides them other temporary oaths
relating to the crown, as that of 25 H. 8. cap. 22. 26 H. 8. cap. 2. 2S
H. 8 cap. 7. 35 H. 8. cap. 1.
The supremacy of the crown of England in matters ecclesiastical
is a most unquestionable right of the crown of England, as might
be shewn by records of unquestionable truth ^nd authority, but this
is not the business of this place; yet nevertheless the pope made
great usurpations and encroachments upon the right of the crown
herein.
King Henry VIII. in the twenty-fifth year of his reign having
pared off those incroachments in a good measure by the statute of
25 H. 8. capp. 19, 20, 21. in the twenty-sixth year of his reign the
supremacy in matters ecclesiastical is rejoined and restored to the
crown by the statue of 26 H. S. cap. 1.
The papal encroachments upon the king's sovereignty in causes
and over persons ecclesiastical, yea even in matters civil under that
loose pretense of in or dine ad spiritualia, had obtained a great
strength, and long continuance, notwithstanding the security the
crown had by the oaths of fealty and alligeance; so that there was
a necessity to unrivet those usurpations by substituting by authority
of parliament a recognition by oath of the king's supremacy as well
in causes ecclesiastical as civil.
And therefore after those revolutions, that happened in
the life, and on the death oi Henry VIII. Edward VI. and [ 76 ]
queen Mary,(\\\ee\\ Elizabelh coming to the crown, the oath
of supremacy was enacted by the statute of 1 E/iz. cap. l,for the
better securing of the supreme authority of the crown of England
as well in matters ecclesiastical as temporal ; which I shall not here
irepeat, but reserve the same, and what is proper to be said touching
it, to a particular chapter hereafter.(fl^)
Afterwards the dangerous practices of popish recusants gave the
occasions of enacting of the oath of obedience by the statute of 3 Jac.
cap. 4, which I shall likewise refer to its proper place.
And thus far touching alligeance, and the securities of the same by
the oath of alligeance, and the profession of lige homage. [11]
(d) Vide postea cap. 25.
[11] The Acts of Congress relating to naturalization are, An Act to establish an uni-
form rule of naturalization, 26 March, 1790. An Act to establish an uniform rule of
naturalization and to repeal the acts heretofore passed on that subject, January 29, 1795.
An Act to establish an uniform rule, &.C., and to repeal, &c., April 14, 1802. Ch. '28.
An Act in addition to an Act entitled, "An Act to establish, &c., and, to repeal," &c.,
March *,6, 1804. Ch. 47. An Act relatintr to evidence in cases of naturalization, March
22, 1816. CA. 32. An Act in further addition to an "Act to establish, &,c., and to
repeal," Ace, Maij2G, 1824. Ch. 186. An Act to amend the Acts concerning naturaliza-
Uon, J»/oy, 24, le28.C/<. 116. •
VOL. I. — 10
76 HISTORIA PLx\CITORUM CORONiE.
CHAPTER XI. ■*
CONCERNING TREASONS AT THE COMMON LAW, AND THEIR UNCER-
TAINTY.
Having shewn in the former chapter the kinds and bonds of fidelity
and alligeance from the subject to the king, I come to consider o/
those crimes, that in a special manner and signally violate that allige-
ance, namely high treason.
At Common law the crime of high treason had some kinds of limits
and bounds to it.
In the time of Henry II. Glanvili who then wrote Lib.
\_ 11 ~\ IV. cap. 1 4' 7, tells us of four kinds of crimmse Ixsas mojes-
tatis, viz. de niorte regis, de seditione regni, de sedilione
exercittis regis, and the counterfeiting of the great seal ; for as to the
counterfeiting of money, that came under the title of Crimen falsi,
and the punishment thereof antiently was various; but of that par-
ticular hereafter.
Bructon,\\\?ii wrote in the \\mQoiHenry\\\.IAh.\\\.cap.^. "Siquis
avisn temerario machinatus sit in mortem domini regis; vel aliquid
egerit, vel agi procuraverit ad seditionem(rt) domini regis, vel exer-
citus sui ; vel procurantibus auxilium & consilium pra^buerit, vel con-
sensum, licet id, quod in voluntate habuerit, non perduxerit ad effec-
tum ;" to which he adds counterfeiting of the seal and money;
which, though they come under crimen falsi, yet are reckoned by
him among the crimina Ixsse niajesiatis; tho in these old authors
treason is sometimes expressed by the name of sedition, yet that
word is too general and comprehensive of other ofienses not capital,
as well as of treason ; and therefore a charge of sedition against the
king, or of exciting sedition, or of speaking, writing, or doing any
\.\\m2, seditiously, doih not amount to a charge of treason; and there-
fore It was, that in the case oi Selden and others, Trin. 5 Car. B.R.{b)
when upon an habeas corpus tiie parties were returned committed
(a) In the case of Mr. Selden this is supposed to be the true reading, but in most of
tlie jli-S'/S. of Bracton tlie word in this place is seductionem, altlio in otlier places of
the same chapter the word seditio is used: Fleta makes frequent use of the word Seduc-
tio, Lih. I. cap. 20. § 1 cap. 21 . § § 1, 2, 3. (the last of vi^hich places seems to be a direct
transcript from Bracton) thou;,'h the word seditio is once used by him dicto capite, § 8.
and Bracton afterwards in this same cliajjler styles a traitor sedvctor.
Hengham, cap. 2. and Glauvil, Lib. I. cap. 2. botii of them phcc scditionem in the rank
of treasons, and so it was esteemed by tiic t'ivil law. Difr. Lib, XLVIII. tit. 4. ad leg. Jul. '
Majeslalis, I. 1. tit. 19. De pasnis, I. 38. § 2. Seditio continued to be the technical word
in iejjal proceedings (as will appear from several records hereafter quoted) until the terms
proditio ^' prodilorie \nc\ai\cd In its room, which last word must now be necessarily
used in every indictment of treason. 3 Co. Inst. 4. 12, 1.5.
(6) Mich. 5. Car. I. Vide Rusliv-orlh's Historical Collections, Vol. I. p. 679. Appendix, p.
18, 6(c. Seldeni Opera, Vol. \'\.p. 1938. 'I'lic court was content, that they should be
bailed, but said, that tliey ou;rht to find sureties also for their good behaviour: they had
their sureties ready for the bail, but they were remanded to the Tower, because they
would not find sureties for the good behaviour. SeUhn was notb.iiled till May 1(531, and
not discharged from his bail till Januanj 1G31. Vindi^a Maris Clausi. Stldeni Opera,
Vol.lV.p.li21,SfC.
HISTORIA PLACITORUM CORON.^. _ 78
ly the privy council by the kim^^s command for stirring up sedition
against the king, the prisoners were bailed in the king's court,
because it amounted not to a charge of treason, for sedition in a true
legal signification doth not import treason.[l]
Fleta, who wrote in the time of Edward I. agrees almost verba-
tim with Bracton, viz. Lib. I. cap. 20, 21.(c)
Brifton, who made his book in the time also of king Edward I.
reckons up treasons much in the same manner, yet makes some addi-
tions, cap. 8. de treson', " Grand treson est a compasser nostre mort,
ou disheriter nous de nostre royalme, on de fauser nostre seal, ou de
countrefaire nostre monoye, ou de la retoundre."
And cap. 22. de appeles: '• Sont ascunes felonies, que touchent
nostre snyt, et poient estre suys pur nous, sicome de vers nos mortels
enemies, de nostre seal, de nostre corone, et de nostre monoye fause."
Again; " En primes, c'est a dire, de appels de felonies, que poient
estre faitz par nous, et nemye pour nous, sicome de treson, et de com-
passement purveu vers nostre persone pour nous mettre a mort, ou
nostre compayne, ou nostre pere, ou nostre mere, ou nous enfauntz,
ou nous disheriter de nostre royalme, ou de trahir nostre hoste, tout
ne soit tiel compassement mys en effect."
And in the latter end of the same chapter, " Et de fausyn de nostre
seal, & de nostre monoye, purra lenseur appels pour nous en mesme
la manere, et ausi del purgiserde nostre compayne, ou de nous filles,
ou des norices de nos enfauntz :(c() En queiix cases soit le jugement,
de estre treyne, et pendu, &c." By these various expres-
sions of Britton, it appears that the crime of high treason f 79 ~\
was very uncertain ; sometimes styled under the name of
felony, sometimes had the punishment of petit treason applied to
the crime of high treason, and some crimes mentioned, as treasons,
which were not so taken by Bracton, or Fleta ; and indeed in the
farther pursuit of this argument we shall find, that at common law
there was a great latitude used in raising of offences into the crime
(c) He does not rank the counterfeiting of the seal or of the coin among the crimina
l(Bs<B majestaiis (as Bracton does,) but among the crimina falsi. Lib. I. cap. 22.
{d) According to tlie Mirror of Justice, p. 21, 22. high treason is committed, 1. Per
ceujr, que Occident le roy, ou compassent de faire. 2. Per ceu.x, que luy disheritent del
royalme, per [ceux que] traliissent un host, ou compassent de le faire. 3. Per ceux
avowterors que spargissent le femme le roy, le file le roy eignesse. legitime, avant ceo que
die soit mary, en la garde le roy, ou la nurice le ant le heire le roy. These are the only
offenses, which that treatise calls Crimes de Majesty. Counterfeiting of the king's seal
or money is ranked under Fausonnery, p. 29. And every species of petit treason is
styled Treason, p. 30. as it is also by Britton, cap. 8.
It is one of the articles against Roger Mortimer, Rot. Pari. 4 £. 3 n. 1. 28. E. 3 n. 8:
that he compassed to destroy les nurriz le roy. If a private lord was injured in this man-
ner, it was anticntly petit treason: " Traditores aulem, qui dominum dominamve inter-
fcccrint, vel qui cum uxoribus dominorutn suoruni, vel nliabus, vel nutricibus dominorum-
concubuerint," &,c. Fleta Lib. I. cap. 37. § 4. "Ou disparage ma file, en ma chambre,
ou ma femme, ou la norrice, de mon heire, ou le aunt, &c." Mirroir de Justice, p. 31.
Vide Britton, cap. 22. (70)
[1] For the distujction between sedition and hlffh treason, see 1 East, P. C. 48. Archb,
C. P. 493. 5 . •
79 HISTORIA PLACITORUM CORONtE.
and punishment of treason, by way of interpretation and arbitrary
construction, whicli brought in great inconvenience and uncer-
tainty.[2]
In the parhament of 33 E. I. now printed, (e) which is Hkewise
•entered P. 33 E. I Rot. 22 NorthH. coram rege: Nicholaus de
Segrave was impeached(/) de eo, quod cum dominus rex nunc in
ultima guerrasua Scotise inter hostes & inimicos suos extitisset, & idem
Nicholaus de Segrave liomo hgeus tenens de ipso domino rege per
homagium & fidehtatem in eadem guerra in exercitu & auxilio ipsius
commorans esset; idem Nicholaus de Segrave motu proprio, mali-
tiose, & absque causa contentionem & discordiam versus Johannem
de Crumbwell in eodem exercitu simiUter in auxihum regis existen-
tem movebat," laying great iniquities to his charge ; that Crumbwell
offered to defend himself against these imputations, as the king's
court should award : Et ad hoc fidem suam ei dedit ; et post ejusdem
fidei dationem prsedictus Nicholaus elongando se & suos, & extra-
hendo pra3dictum Johannem & suos ab exercitu & auxilio ipsius
domini regis, quantum in ipso Nicholao fuit, eundem dominumregem
inter inimicos suos periculo hostium suorum relinquendo sprevit, &
prajdictum Johannem ad se defendendum in curia regis FrancisB
adjornavit, & certum diem ei dedit; et sic, quantum in eo fuit, sub-
mittens & subjiciens dominium regis & regni Jlnglix subjectioni
domini regis Francise; and that in pursuance thereof con-
[ 80 ]] trary to the king's prohibition he took his journey towards
France; and that he did this " nequiter & malitios^ in per-
sonse domini regis periculura, curiaj suae contemptum, coronte & dig-
nitatis suae regige laesionem & exhoeredationem manifestam, & contra
ligeantiam, homagium, juramentum, & fidehtatem, quibus ipse domino
regi tenebatur." Segrave confessed the offence. The lords in par-
liament are charged by the king upon their alligeance to give advice,
what punishment was to be inflicted: " Quiomnes habito super hoc
diligenti tractatu & advisamenlo, consideratis & intellectis omnibus in
dicto facto contentis & per prasdictum Nicholauni plene & express^
cognitis, dicunt, quod crimen hnjusmodi meretur poenam amissionis
vita;, &c." but he was after pardoned.
Which judgment seems to import no less, than the crime of high
treason, though the whole judgment be not declared at large but
with an ^'c.
Accroaching of royal power was a usual charge of high treason
antiently, though a very uncertain charge, that no man could' well
tell what it was, nor what defence to make to it. [3]
The great charge against the Spencers about the 1 E. 2. was, that
they did accroach royal power, whereof several instances are
given.(^)
(e) In 72yZf7/'s Placifa Parlimentarii7,p.^GCi.
(/) Per Nic/inlauin de. Warcwick, qui scqiiilur pro domino rege.
ig) Vide Knighton, p. 2545, 2547. Edit. Twysden.
[2] See HuUntn's Constitiitionol Ilistonj of England, vol. '3. p. 203.
[3J Luders^ Tract on Constructive Treasun, 57 el seq.
HISTORIA PLACITORUM CORONiE. SO
The great charge against Roger Mortimer in the parliament of 4
E. 3, next to that of the procnrement of king Edward II's death, was
accroaching of royal power, whereof several instances are given ;
but he had judgment by the lords in parliament to be drawn and
hanged, upon that article only, that concerned the death of king
Edward II. Vide infra cap. 14.
Trin. 21 £.3. Rot. 23. rex coriim rege. John Gerberge, Knt. in-
dicted "Quod ipse simul cum aliis in campo villae de Royston in alta
regia strata," rode armed with his sword drawn in his hand modo
guerrino, and assaulted and took IVilliam de Botelisford, and de-
tained him till he paid 90/ &c. and took away his horse, "usurpando
sibi infra regnum regis regiam potestalem ipso domino rege in partibus
exteris existente, contra sui ligeantiam, & regis & coronse suae pree-
judicium & seditionem manifestam:" he prayed his clergy,
but was ousted of it, Quia privilegium clericale in hujusmodi [ 81 ]
casu seditionis secundum legem & consuetudhiem regni
hactenus obtentas & usitatas non est allocanduni :(A) but yet he re-
fusing to plead was not convicted, as in case of treason, but was put
to penance, ad pce.nitentiam suam; two of his companions being
convicted by verdict, had judgment, quod distrahantur Sf suspend-
antur.
This judgment it seems troubled the commons in parliament, who
thought that the accroaching of royal power was somewhat too
general a charge of treason before the ordinary courts of justice,
though it had been used in charges of treason in parliament; and there-
fore in the parliament following held Crastino Ililarii 21 E. 3. n. 15]
there is a petition in parliament in these words : Item prie le com-
men, qe come ascuns des justices en place devant eux ore de novel
ont adjudges pur treason accrochment de royal poer, pry le dit corn-
men, que le point soil desclare en ceo parlement, en quele case ils
accrochent royal poer, per quei les seigneurs perdent lour profit
de le forfeiture de lour tenents, et les arreynes beneficie de seint
esglise.
Ro'. En les case, on tiel judgments sont rendus, sont les points
des tieux treasons et accrochments declares per mesmes les judg-
ments.
In 22 ^iss. 49.,(?) it appears that John at Hill was indicted, and
attaint of high treason for the death of Adam de Walton nuntii
domini regis missi in mandalum ejus exeqiiendum.
And in the year before, viz. 21 E. 3. 23. it seems admitted, that
an appeal of treason lies for the killing one of malice prepense, that
was sent in aid of the king in his wars with certain men of arms.
King Edward II. being deposed, and committed prisoner to Bar-
clay castle under the custody of John Matravers and Thomas
Gurney, was there by the procurement of Roger Mortimer barbar-
(h) For the same reason clergy was refused in Thorpe's case, T.21 E. 3. Rot. 23. Rex.
de quo vide postea,
(i) B, Treason 14.
81 HISTORIA PLACITORUM CORON.E.
ously murdered ; for which Mortimer and Gurney were attainted of
treason by judgment of the lords in parhament. 4 E. 3. n. 1, 5.{k)
JMatravers was suspected to be guilty, but yet he played
[ 82 ] another game, for though he knew of the death of EJivard
II. yet he informed Edmund earl of Kent, half brother to
Edward II. that he was living; the earl therefore with many others
raised a force for his deliverance, but prevailed not, but was for that
fact attainted of treason, anno 3 E. 3. which attainder was after-
wards in the parliament 2S E. 3. reversed, and the grandchild of the.
earl oi Kent restored :(/) John Matravers, who it seems had animated
the insurrection of the earl of Kent, though he fled into Gtrmany^
yet by judgment of the lords in parliament 4 E. 3 n. 3. was attainted
of treason for the death of the earl oi Kent: the words of the record
are, " Tres-touts les peres, counts, et barons assembles a ce^t parle-
ment a fVestminsier si out examine estraitment, et sur ce sont
assentus et accordes, qe John Matravers si est culpable de la mort
Esmon count de Kent le uncle nostre seigneur le roy qe ore est,
come celui qe principalment, trayterousment et fausment la mort le
dit counte compassa issint, qe la ou le dit John savoit la mort le roy
Edward, ne per quant le dit John par enginous manner et par ses
fausses et mauveyse subtilties fist le ditco.unte intendre la vye le roy,
le quel fausse compassement fust cause de la mort le dit counte et de
tout le mal qe s' ensuist, par quoi les sus-dits peres de la tre et jugges
du parlement ajuggent et agardent, que le dit John soit treine,
penclus, et decoUe, come treitre, queu part, qil soit estre troue."
Upon this judgment Matravers brought a petition of reversal.
Pot. Pari. 21 E. 3. n. 65. dors, but nothing was done Upon it ; but
Rot. Paid. 25 E. 3. p. 2. n. 54, 55. he was restored by act of parlia-
ment.
By these and the like instances, that might be given, it appears,
how uncertain and arbitrary the crime of treason was before the
statute of 25 E. 3. whereby it came to pass, that almost every offense,
that was, or seemed to be a breach of the faith and alligeance due to
the king, was by construction and consequence and interpretation
raised into the otfense of high treason.
And we need no greater instance of this multiplication of
[ 83 3 constructive treasons, than the troublesome reign of king
Richard II. which, though it were after the limitation of
treasons by the statute of 25 E. 3. yet things were so carried by fac-
tions and parties in this king's reign, that this statute was little
observed; but as this, or the other party prevailed, so the crimes of
high treason were in a manner arbitrarily imposed and adjudged to
the disadvai]tage of that party, that was intended to be suppressed;
so that de facto that king's reign gives us as various instances of
these arbitrary determinations of treasons, and the great inconve-
(fc) Yiih. liot. Pari. 28 E. 3. n. 8. when the jii()frmcnt ngaLnst Mortimer was reversed.
{I) That altuinder was reversed lonfj before, uiz. 4. T'^.'S. Vide Rut. I'arl. 4 Z?. 3. n. II,
12. upon tlio petit,iori oi Edmund liis eldest son, and Margaret countess dowager oi Kent;
and Edmund the son was restored.
HISTORIA PLACITORUM CORONA. 83
niences that arose thereby, as if indeed the statute of 25 E. 3. had
not been nnade or in force. And though most of those judgments
and declarations were made in parliament ;(*) sometimes by the
king, lords, and commons ; sometimes by the lords, and afterwards
atiirmed and enacted, as laws; sometimes by plenipotentiary power
committed by acts of parliament to particular lords and others, yet
the inconvenience, that grew thereby, and the great uncertainty, that
happened from the same, was exceedingly pernicious to the king
and his kingdom.
I shall give but some instances. Rot. Pari. 3. R. 2. n. IS. Johfi
Imperial, a. public minister, came into the kingdom by the safe-con-
duct of the king, and he was here murdered :(m) and an indictment
taken by the coroner upon the view of his body, " Quel case examine
et dispute entre les seigneurs et commons, et puis monstre au roy en
plein parlement, estoit illoques devant nostre dit seigneur le roy
declare, determine, et assentus, qe tiel fait et coupe est treason, et
crime de royal majesty blemy, en quel case y ne doet allouer a nulli
de enjoyer privilege de clergy."(n)
This declaration, it is true, was made and grafted upon the clause
in the latter end of the statute of 25 E. 3. touching declaring of trea-
sons by parliament.
In the parliament of 10 R. 2. there was a large commission (o)
granted by the king upon the importunity of certain great
lords, and of tlie commons in parliament, to the archbishop [ 84 1
of Canlerhury and others for the reformation of many
things supposed to be amiss in the government; which commission
was thought to be prejudicial to the king's prerogative. Vide Rot.
Pari. IO^R.2. n. 34, Rot. Pari. 21 R.2.n.U.
After this, viz. 25 Jlug. \\ R. 2. the king called together the two
chief justices, and divers others of the judges, and propounded divers
questions touching the proceeding in that parliament, and the obtain-
ing of that commission; and they gave many liberal answers, and
among the rest, " Qualem poenam merentur, qui compulerunt sive
arctarnnt regem ad consentiendum confectioni dictorum statuti, ordi-
nationis, & commissionis ? Ad quam qugestionem unanimiter respon-
deruut, quod sunt, ut proditores, merito puniendi: Item qualiter sunt
illi puniendi, qui impediverunt regem, quo minus poterat exercere,
quae ad regalia & pracrogativam suam pertinuerunt? Unanimiter
etiam responderunt, quod sunt ut proditores, etiam puniendi,'^ with
divers other questions, and answers to the like purpose.(/))
This extravagant, as well as extrajudicial declaration of treason
by tliese judges, gave presently an universal oflence to the kingdom;
for presently it bred a great insecurity to all persons, and the next
parliament crastino purijicationis 11 R. 2. there were divers appeals
C) This was the reason why the statute of 25 E. 3. was not followed, because that
statute was not thought to limit declarations in parliament.
(in) Holin. Chron. p. 422. 60. b. (n) See 3 Co. Instit. 8.
(o) See this coniniission 10 R. 2. cap. 1. and State Trials, Vol. I. p. 3.
(p) See the questions and answers, i>tate Trials, Vol. I. p. 8.
84 HISTORIA PLACITORUM CORONA.
of treason by certain lords appellors, wherein many were convict of
high treason under general words of accroaching royal power, sub-
verting the realm, ^^c. and among the rest those very judges, that
had thus liberally and arbitrarily expounded treason in answer to
the king's questions, were for that very cause adjudged guilty of
high treason, and had judgment to be hanged, drawn, and quartered,
though the execution was spared ;((7) and they having led the way
by an arbitrary construction of treason not within the statute, they
fell under the same fate by the like arbitrary construction of the
crime of treason.
Neither did it rest here, for the tide turned, and in Rot.
[ 85 ]] Pari. 21 R. 2. n. 12, 13. the commission before-mentioned,
and the whole parliament of 11 R. 2. is repealed, and a new
appeal of treason against the duke of Gloucester, esix\ o{ Jirundel,
and the commissioners in the former commission, and the procurers
thereof under that common style of accroaching royal poiver, where-
upon divers of them were condemned as traitors: and n. 18, there
were four points of treason farther declared, viz. " Chescun qe com-
passe, et purpose la morte le roy, ou de lui deposer, ou de susrend-re
son homage liege, ou celuy, qe levy le people, et chivache encountre
le roy a faire guerre deins son realme, et de ceo soit dument attaint,
et adjugge en parlement, soit adjuggez come traytor de haul treason
encountre la corone, et forfeit de lui, et de ses heyres, quecunques
touts ses terres, tenements, et possessions, et libertys, et touts autres
inheritements, queux il ad, ou ascun autre a son oeps, ou avoit le
jour de treason perpetres, si bien en fee tayl, come de fee simple,
au roy."
These four points of treason seem to be included within the statute
of 25 E. 3. as to the matter of them, as shall be hereafter shewed;
but with these differences, viz. 1. The forfeiture is extended farther
than it was formerly, namely to the forfeiture of estates-tail and uses.
2. Whereas the ancient way of proceeding against commoners was
by indictment, and trial thereupon by the country, the trial and judg-
ment is here appointed to be in parliament.[4] 3. But that, wherein
the principal inconvenience of this act lay, was this, that whereas
the statute of 25 E. 3. required an overt-act to be laid in the indict-
ment, and proved in evidence, this act hath no such provision, which
left a great latitude, and uncertainty in point of treason, and without
any open evidence, that could fall under human cognizance, sub-
jected men to the great punishment of treason for their very thoughts,
{q) Tlicy were all banished to Ireland except Tresilian, wlio was executed according
to the judgment. See Slate Trials, Vol. I. p. 13, 14.
[4] In 1G81, the House of Commons passed a resolution to impeach one Fitzkarris
of high treason, at the bar of llic Mouse of Peers, 'i'ho Lords refused to entertain the
cause; und voted that he should he jjrocecded against by indictment in the lower courts.
It seems to be the better opinion, that the House of f-ords have no jurisdiction in sucJi
a case. 4 BL Cum. 25^, though Mr. Ilallam thinks differently. 2 vol. Cons. Ihs., p. 603.
HISTORIA PLACITORUM €0RON.^. 85
which without an overt-act to manifest them are not triable but by-
God alone.
These were the unhappy effects of the breaking of this great
boundary of treason, and letting in of constructive treasons, which,
by various vicissitudes and revolutions mischieved all parties
first or last, and left a great unquietness, and unsettledness [ 86 ]
in the minds of people, and was one of the occasions of the
unhappiness of that king.
Henry IV". usurping the crown, and the people being sufficiently
sensible of the great mischiefs they were brought in by these con-
structive treasons, and the great insecurity thereby, Rot. Pari. 1 H.
4. n. 70. the parliament of 21 R. 2. is entirely repealed, that of 11 R.
2. entirely revived; and it was enacted, (r) that a parliamentary au-
thority be not for the future lodged in a committee of particular per-
sons, as it was done 2IJ?. 2. "Et auxint mesme nostre seigneur le roy
de son propre motif reherceant, qe come in le dit parlement tenuz
I'an 21, y fueront ordeynes per estatute phiseurs pains de treason, si
qe y ne avoit ascun home, qe sauoit, come il se deust savoir, de faire,
parler, ou dire pur doubt des tielx paines, dist, qe sa voiunte est tout
outrement, qe en nul temps avener ascun trayson soit adjugges autre-
ment qil ne feust ordeignez par statute en temps de son noble aiel le
roy E. le 3. qe dieu assoyi; dont les dits seigneurs et comens fuerent
tres grandment rejoyces, et mult humbleraent ent remercierent nostre
dit seigneur le roy."(5)
Now although the crime of high treason is the greatest crime
against faith, duty, and human society, and brings with it the greatest
and most fatal dangers to the government, peace, and happiness of
a kingdom, or state, and theretbre is deservedly branded with the
highest ignominy, and subjected to the greatest penalties, that the
law can inflict; yet by these instances, and more of this kind, that
might be given, it appears, 1. How necessary it was, that there
should be some fixed and settled boundary for this great crime of
treason, and of what great importance the statute of 25 B. 3. was, in
order to that end. 2. How dangerous it is to depart from the letter
of that statute, and to multiply and enhanse crimes into treason by
ambiguous and general words, as accroaching of royal power, suh-
vttrling of fundamental laws, and the like; and 3. How dangerous
it is by construction and analogy to make treasons, where
the letter of the law has not done it: for such a method f 87 ]]
admits of no limits or bounds, but runs as far as the wit and
invention of accusers, and the odiousness and detestation of persons
accused will carry men.(/)
(r) See 1 H. 4. cap. 3, 4, ^ 5. (s) See 1 H. 4. cap. 10.
(0 This reasoning of our author is equally strong against constructive interpretations
of compassing the death of the king,
VOL. I. — 11
87 HISTORIA PLACITORUM CORON^^
CHAPTER XII.
TOUCHING THE STATUTE OF 25 E. III. AND THE HIGH TREASONS
THEREIN DECLARED.
A Parliament was held on Wednesday on the feast of St. Hill. 25 E.
,3. at which parliament the statute declaring the points of treason was
made. The petition of the commons, upon which it was made, is
Rot. Pari. 25 E. 3. p. 2. n. 17. in these words: " Item come les jus-
tices nostre seigneur le roy assignes en diverses countees ajaggent les
gents, qe sont empeches devant eux, come treitors par divers causes
disconus a la comen estre treison, qe plese a nostre seigneur le roy
par son counsel, & par les graunts & sages de la terre declarer les
points de treson en cest pres^ent parlement.
" Ro\ Quant a la petition touchant treison nostre seigneur le roy
ad fait declarer les articles de ycele en manner qe ensuit : cest assa-
voir, en case quant home face compaser ou ymaginer la mort nostre
seigneur le roy, ou madame sa compaigne, ou de lour fitz primer &
heir ; ou si home violast la compaigne le roi, & la eisne fille le roy
niente marie, & la compaigne a leisne fitz & heire du roi; & si home
leve de guerre centre nostre seigneur le roy en son royahne ; ou soit
adhereant as enemies nostre seigneur le roy en le royahne, donant
a. eux eide, & confort en son royalme ou par aillours, & de ceo pro-
vablement soit atteint de overt fait par gents de lour condi-
[ 88 1 cion; Et si home contreface le grant scale le roy, ou sa
monoie, & si home apporte fausse monoie en cest royalme
contrefait a la monoie dengleterre, si come la monoie appelle Lusse-
6t/r^A, ou autre semblable a la dite monoie dengleterre, sachant la
monoie estre fausse, pur marchander ou paiement faire en deceit
nostre seigneur le roy & de son people : Et si home tuast chancellory-
treasurer, ou justice nostre seigneur le roi delun baunk, ou del autre,
justice en eir, des assisez & de touz auters justices assignez a oyer &
terminer, esteantz en lour places enfesant lour oflice. Et fait a enten-
dre qe en les cases susnomees doit estre ajuggee treisonce, qe estent
a nostre seigneur le roi & a sa royale majeste, & de tiels maneres de
treison la forfeiture desescheets appertient a nostre seigneur le roy,
sibien des terres, & tenementz tenuz des auters, come de lui mesme :
ouesque ceo il y ad autre manere de treison, cest assavoir, quant nil
servant lue son mestre, une feme, qu tue son baron, quant home se-
cular ou de religion tue son prelate, a qi il doit foi & obedience, & tiel
manere de treison doun forfeiture des escheets a chescun seigneur de
son fee propre; & pur ceo qe plusours aulres cas de semblable trei-
son purront eschaier en temps avenir, queux home ne purra penser
ne declarer en present, assentu est qe qui autre cas suppose treison,
qe ilest especifietz peramont,aviegne de novel deuant ascuns justices,
demoerge la justice sanz aler a juggement de treison, tantque per de-
vant nostre seigneur le roy & son parlement soit le case monstre, &
HISTORIA PLACITORUM CORON.E. 88
declare, le quel ceo doit estre ajiigge treson, ou aiit' felonie ; & si par
cas ascun home de cest royalme chivache armee descovert,ou secret-
ment ad geiitz armez coiitre ascun autre pur lui tuer ou desrobber,
ou pur lui preudre & retener tanque i I face fyu ou raunceon pur sa
deliverance avoir, nest pas lentent du roy & du son counseil, qe en
tiel cas soit ajugge treison, eiriz soit ajugee felonie, ou trespass solonc
la ley de la terre auncienement usee, & solonc ceo que le cas demand:
Et si en tiel cas, ou autre semblable devant ces heures ascun
justice eit ajugge treison, & par ycelle cause les terres & tene- [ 89 ]
menfz devenuz en la maiue nostre seigneur le roi come for-
faitz eient les cheifes seignours de fee lour escheets des tenementz de
eux tenuz, le quel qe les tenementz soient en la maine le roi ou en
main dauters par doun, ou en autre manere : savant toutes foits a
nostre seigneur le roi Ian, & le wast, & auters forfeitu resides chatelx,
qe a lui attient en les cas susnomez, & qe briefs de scire facias vers
les terre-tenants soient grantez en tiel cas sanz autre original & sanz
alouer la protection nostre seigneur le roi en la dite suyte ; & de les
terres, qe sont in la maine le roi, soient grantes briefs as viscontz des
countees la, ou les terres serront, de ouster la maine sanz autre delaie."
The statute itself is drawn up upon this petition and answer, and
differs nothing in substance from the answer to the petition upon the
parliament-roll : the statute itself runs in these words : " Item, where-
as divers opinions have been before this time in what case treason
shall be said, and in what not, the king at the request of the lords
and of the commons hath made a declaration in the manner, as here-
after followeth: that is to say, when a man doth compass or ima-
gine[l] the death of our lord the king, or our lady his queen, or of
their eldest son and heir; or if a man do violate the king's compa-
nion, or the king's eldest daughter unmarried, or the wife of the.
king's eldest son and heir; or if a man do levy war against our lord
the king in his realm, or be adherent to the king's enemies in his realm,
giving to them aid and comfort in the realm or elsewhere, and thereof
be provably(a) attainted of open deed by the people of their condi-
tion; and if a man counterfeit the king's great or privy seal, or his
money; and if a man bring false money into this realm counterfeit to
the money of England, as the money called Lushburgh, or other
like to the said money ot England, knowing the money to be false,
to merchatidize or make payment in deceit of our lord the king and
of his people: and if a man slay the chancellor, treasurer, or the
king's justices of the one bench or the other, justices in eyre, or jus-
tices of assize, and all other justices assigned to hear and
determine, being in their places doing their offices. And it [ 90 ]
is to be understood, that in the cases above rehearsed that
ought to be judged treason, which extends to our lord the king and
liis royal majesty, and of such treason the forfeiture of the escheats
pertaineth to our lord the king, as well of the lands and tenements
■ (a) See 3 Co. Inst, p. 12.
[1] See Luders' Tracts, 137.
m HISTORIA PLACITORUM CORON.E.
holden of others, as of himself: and moreover there is another man-
ner of treason, that is to say, when a servant slayeth his master, or a
wife her husband, or when a man secular, or religious, slayeth his
prelate, to whom he oweth faith and obedience; and of such treason'
the escheats ought to pertain to every lord of his own fee : and be-
cause that many other like cases of treason may happen in time to
come, which a man cannot think nor declare at this present time, it
is accorded, that if any other case supposed treason, which is not
above specified, doth happen before any justices, the justices shall
tarry without any going to judgment of the treason, till the cause be
shewed and declared before the king and his parliament, whether it
ought to be judged treason, or other(6) felony: and if par case any
man of this realm ride armed[2] covertly, or secretly with men of
arms against any other to slay him, or rob him, or take him, or
retain him, till he hath made fine or ransom for to have his deliver-
ance, it is not the mind of the king, nor his council, that in such case
it shall be judged treason, but shall be judged felony, or trespass ac-
cording to the laws of the land of old time used, and according as
the case requireth. And if in such case, or other like, before this
time any justices have judged treason, and for this cause the lands
and tenements have come into the king's hands as forfeit, the chief
lords of the fee shall have the escheats of the tenements holden of
them, whether that the same tenements be in the king's hands, or in
others by gift, or in other manner; saving always to our lord the
king the year and the wast, and the forfeitures of chattels,
[] 91 ] which pertain to him in the cases above-named; and that
' writs of scire facias be granted in such case against the
land-tenants without other original, and without allowing any pro-
tection in the said suit; and that of the lands, which be in the
king's hands, writs be granted to the sheriffs of the counties, where
the lands be, to deliver them out of the king's hands without de-
lay."[3]
The several high treasons hereby declared are these:
1. The compassing of the death of the king, queen, or prince, and
declaring the same by an overt -act.
2. The violation or carnal knov/ledge of the king's consort, the
king's eldest daughter unmarried, or the prince's wife.
3. The levying of war against the king.
4. The adhering to the king's enemies within the land or without,
and declaring the same by some overt-act.
5. The counterfeiting of the great seal or privy seal.
6. The counterfeiting of the king's coiti, or bringing counterfeit
coin into this realm.
(6) The old transl.ition seems here to be preferable, viz. else; for auV being abbreviated
may be cither autre or autrement.
[2] Liidcrs, 141.
[3] Mr. Luderf translation of this statute is somewhat different from the one here
given. I'ract i. p. 4.
IIISTORIA PLACITORUM CORONJE. 91
7. The killing of the chancellor, treasurer, justices of the one
bench or the other, justices in eyre, justices of assise, justices oi oyer
and terminer in their places doing their offices.[4]
[4] By Art. 3. Sect. 3. of the Constitution of the United States, treason against the
United Staes shall consist only in levying weur against them; or adhering to their
enemies, giving them aid and comfort. No person shall be convicted of treason, unless
on the testimony of two witness to the same overt act, or confession in open court.
Congress shall have power to declare the punishment of treason; but no attainder of
treason shall work corruption of blood, or forfeiture, except during the life of the person
attainted.
In furtherance of this constitutional provision, an Act of Confess was passed April
3{)tk, 1790,. for the punishment of certain crimes against the United States, by which it
is enacted, "That if any person or persons, owing allegiance to the United States of
America shall levy war against them, or shall adhere to their enemies, giving them aid
and comfort within the United States, or elsewhere, and shall be thereof convicted, on
confession in open Court, or on the testimony of two witnesses to the same overt act of
the treason whereof he or they shall stand indicted, such person or persons shall be ad-
judged guilty of treason against the United Slates, and shall sutfer death."
The other parts of the Act of Congress with the decisions of the federal Courts, de-
claring what acts amount to the two species of treason defined by the Constitution and
laws of the United States, and the cases that have come within the cognizance of the
courts of the different States, will be given in their proper places. It may, however, be
here observed, that under the old confederation there was no judicial power organized or
clothed with authority for the trial and punishment of treason against the United States.
It became necessary therefore to provide for it under the judicial powers of the several
States. But since the framing of the Constitution, the jurisdiction is exclusively in the
United States Courts, II Johns. 553. Many of the States have provisions in their Con-
stitutions respecting this crime; thus: "Treason against the State shall consist only in
levying' war against it; or in adhering to its enemies, giving them aid and comfort. No
person shall be convicted of treason, unless on ths testimony of Iwo witnesses, or on
confession in open court," is to be found in the Constitutions of Maine, Connecticut,
New Jersey, Kentucky, Indiana, Louisiana, Mississippi, Alabama, Missouri, Michigan, and
Arkansas. And most of them have enacted laws, some of which contain treasons un-
known to the Constitution of the United States,
It has been doubted by several learned gentlemen whether, since the making of the
Constitution of the United Stales, treason can in any case be committed against a State.
Mr. Livingston, in his System of Penal Laws, p. 148, says that, " from the nature of the
federal union, a levy of war against one member of the Union is a levy of war against the
whole; therefore it is concluded that treason against the State, being treason against the
United Slates, it is to be punished under their laws and in their courts." See also p. 380.
A writer in the American Law Magazine, vol. 4, p. 318, argues in the same manner;
and Mr. Justice Story says, that a State cannot take cognizance, or punish the offence,
(treason against the United States,) whatever it may do in relation to the offence of trea-
son committed exclusively against itself, if, indeed, any case can, under the Constitution,
exist, which is not at the same time treason against the United States. Const. 3 vol. p.
173; but in his charge to the Grand Jury, {June 15, 1842,) he speaks thus, " Treason
may be, and often is, aimed altogether against the sovereignty of a partieu'ar State.
Thus, for example, if the object of an assembly of persons, met with force to overturn the
government or constitution of a State; or to prevent the due exercise of its sovereign
powers, or to resist the execution of any one or more of its general laws; but without
any intention whatsoever to intermeddle with the relations of that State with the national
government, or to displace the national laws or sovereignty therein, every overt act done
with force towards the execution of such a treasonable purpose, is treason against the
Slate, and against the State only." 1 Story's Rep. 616. That this offence may be com-
milted against a State, seems to be recognized by the second section of article four of the
Constitution of the United Slates, which provides that, "a person charged in any State
with treason, &.C., who shall flee from justice and be found in another State, shall, on
demand of the executive authority of the State from which he fled, be delivered up, to be
removed to the State having jurisdiction of the crime;" it was assumed in the case of
The People v. Lynch, U Johns. 54'J, where the court said, " that it might be by an open
and armed opposition to the laws of the State, or a combination and forcible attempt to
91 HISTORIA PLACITORUM CORON.E.
overturn or usurp the government. And, indeed, the State in Its political capacity, may,
under certain special circumstances pointed out by ttie Constitution of the United Slates,
be engag'ed in war with a foreign enemy;" and it was directly decided, after argument,
in Dorr's case, Pamph. p. 123. See also 4 Tucker's Bl. Com. Apdx. 21. Serg. on Const.
382. Rawle on Const. 305.
CHAPTER XIII.
TOUCHING HIGH TREASON IN COMPASSING THE DEATH OF THE KING,
QUEEN, OR PRINCE.
The first article of high treason declared by the statute of 25 E.
3. is this, and in these words:
^^ fV/ien a man doth compass or imagine the death of our lord
the king, or of our lady the queen, or of their eldest son
[ 92 ] and heir."
Upon this division there will be these considerations.
I. What shall be said a man that compasseth.
II. What shall be said the king, queen, or their eldest son.
III. What shall be said a compassing or imagining of any of
their deaths.
IV. Wliat shall be evidence, or an overt-act to prove such ima-
gining..
V. The form of an indictment of compassing the death of the
king, queen, or prince.
I. What shall be said a man compassing, S,'C.
The general learning of this point in relation to natural, accidental,
or civil incapacities hath been at large handled in the former chap-
ters; but there is something peculiar to the case of high treason,
which is considerable in this division.
If an alien amy comes into England, and here compass the death
of the king, queen, or prince, this is a man compassing within this
law; for, tlio he be the natural subject of another prince, yet during
his residence here he owes a local alligeance to the king o[ England,
and tho the indictment shall not style hiiti natnralis subditiis, nor
style the king naturalem dominuni, yet it shall run prodilorie <5'
contra ligeantise sute dehituni. Co. P. C. p. 5. 7 Hep. Calvin^s
ccise.{a) Dyer. 144. •
If an alien amy subject of another prince comes into this kingdom
and here settles his abode, and afterwards war is proclaimed between
the two kings, and yet the alien contiimes here and takes the benefit
of the king's laws and protection, and yet compasses the death of
the king, this is a man compassing within this law; for, tho he be
the natural subject of another prince, lie shall be dealt with as an
English subject in this case, unless he first openly remove himself
from the king's protection bypassing to the other prince, or byapub-
(a) fol. 6, 17.
HISTORIA PLACITORUM CORONA. 92
lie renunciation of the king of England^s protection, which hath
some analogy with that, which they call diffidatio, or defiance.
And the same law I take to be, if the subject of a forein
prince in war with ours come into England and here trade [ 93 1
and inhabit either as a merchant, dweller, or sojourner, if
such a person compass the death of the king, he may be dealt with
as a traitor, because he comes not hither as an enemy, or by way of
hostility, but partakes of the king's protection: with this agrees the
case oi Stephano Farrara de Gama, and Emanuel Lewes Tinoco,
Portugueze born, and then subjects to the king of Spain, between
whom and the queen of England there was then open war, who
were indicted and attaint of high treason for conspiring with Dr. Lo-
pez to poison the queen. (6) 37 Eliz. Calvin's case. 7 Co. Rep. p. 6.
And, though they came hither with the queen's protection, it alters
not the case, for every foreigner living publicly and trading here is
under the king's protection : and this appears by the statute of Magna
Charta, cap. 30. " Et si sint de terra contra nos guerrina, &. tales in-
veniantur in terra nostra in principio guerraB,attachientur sine damno
corporum suorum vel rerum, donee sciatur a nobis vel a capitali jus-
tieiario nostro, quomodo mercatores terras nostras tractentur, qui
tunc inveniantur in terra ilia contra nos guerria; & si nostri salvi sint
ibi, alii salvi sint in terra nostra."
The statute speaks indeed of mercatores, but under that name all
foreigners living or trading here are comprised.
And therefore in ancient times before the subjects of forein princes
in hostility residing here were dealt with as enemies, a proclamation
issued for their avoidance out of the kingdom; and in default of their
avoidance within the time limited by such proclamation they lost the
benefit of the king's protection.
And after such proclamation, yet upon caution given sometimes
by mainprise de se bene gerendo, sometimes by oaths of fidelity to
the king, they had sometimes special, and oftentimes general protec-
tions, notwithstanding such hostility. Rot. Vascon. 18 E. 2. 21, 24.
Pat. \4 H. 6. part. 2. m. 34, 35.
The statute of the Staple,{c) cap. 17. hath made provision for mer-
chants strangers, in case war shall happen between their prince and
the king of England, viz. that they shall have convenient ■
warning by forty days by proclamation to avoid the realm; [ 94 1
and if they cannot do it by that time by reason of some acci-
dent, they shall have forty days more, and in the mean time liberty
to sell their merchandizes: during these eighty days they have the
king'sprotection, andif they do any treasonable act above-mentioned,
they shall be indicted of treason, notwithstanding the hostility be-
tween their sovereign and the king oi England; but it seems, that if
he remain here in a way of trade after proclamation so made, and
the time of his demurrage allowed by this act, he may be dealt with
as an alien enemy; but yet if he after that time continues in his way
(6) Vide Camdeni Eliz. sub anno 1594. (c) 27 E. 3.
94 HISTORIA PLACITORUM CORONA.
of trade or living as before, and shall then conspire the king's death,'
&c. the king may deal with him as an alien enemy by the law of
nations, or as a traitor by the law of the land; because de facto he
continues as a subject, and under the benefit de facto of the king's
protection.
Therefore the general words in Co. P. C. p. 5. wherein he
supposeth an alien enemy cannot be guilty of treason, but must be
dealt with by martial law, are to be taken with that allay, that is
given in Calciii's case, foL 6. b. in these words : " But if an alien
enemy come to invade this realm, and be taken in war, he cannot be
indicted of treason, for the indictment cannot conclude co;i/?'a ligean-
iiae suse dehitum-P the like may be said of such as are sent over
merely as spies by a foreign prince in hostility ; but an alien enemy
living here in the condition of an inhabitant or trader may be guilty of
treason as well as an alien amy, for he doth it praditoriedin& treacher-
ously, and against the obligation that lies upon him, as well as any
others, to be true to the prince, the benefit of whose laws and protec-
tion he holds, so long as he is under the same.[l]
But yet this is observable upon the statute of Magna Charta, cap.
30. and what hath been before said, 1. That if an alien enemy comes
into England a.{{ex the war begun, and lives here under the king's pro-
tection as a subject, yet if he practise treason against the king during
such his abode hefe, he may be indicted of high treason contra ligean-
tias sux de.hitum. 2. Yet such an alien, coming in after the war
begun without the king's licence or safe-conduct, cannot
[[ 95 ] claim the privilege allowed by the statute of 7V/a^;irt CAar/fl?,
cap. 30. to those that were here before the beginning of the
war. 2 Co. Inst. 58. 3. That by the law of England debts and
goods found in this realm belonging to alien enemies belong to the
king, and may be seized by him. 19 E. 4. 6. 7 E. 4. 13. and there-
fore in debt brought by an alien enemy it is a good plea in bar prima
facie, that the person is an alien born m G. in partibus transmarinis
sub obedientid Phillippi regis Hispaniae hostis Sf' inirnici domini
regis; so that, though to some purposes he is under the king's pro-
tection, so as to be guilty of treason, if he conspire against the king's •
life, yet his goods are not by law privileged from confiscation ; and
the reason is, because he might secure his goods by purchase of let-
ters patents of denization, and he shall not take away the king's
rights by his neglect therein.
But then, what if in truth our merchants have liberty of reclaiming
their goods and recovering their debts in the hostile country ? May
the merchant plaintiif reply with this clause of the statute oi Magna
Charta, that " Nostri mercatores salvi sunt ibi, &c. ?"
I answer, he cannot, for it is reserved to another kind of trial ; for
the words are "donee sciatur a nobis vcl a capitali justiciario nostro,
quomodo mercatores nostri ibi tractentur." The king must be as-
certained of the truth of the fact, in whose cognizance it best lies;
[1] See De la Motte'a case, 21 St. Tr. (by Howell), 687.
IIISTORIA PLACITORUM CORONA. 95
and if he be satisfied, that our merchants are permitted to recover
their debts in the hostile kingdom without impediment or confiscation,
this is to be notified and declared by some proclamation, or instru-
ment under the great seal declaring the fact, and allowing them to
prosecute for their debts here ; and then, by virtue of this statute or
public declaration, the merchant alien plaintiff, may reply with this
special matter in maintenence of his action. [2]
Here somewhat may be of use to be said -touching treasons by
embassadors of foreign princes, wherein altho sometimes reason
of state and the common interest of princes do de facto govern in
these cases, yet it will not be amiss to consider the opinions
and practices of former times in relation to this matter. [ 96 J
First, If an Englishman born, though he never took the
oath of alligeance, becomes a sworn subject to a foreign prince, and
is employed by him into England as his minister, agent, or em-
bassador, and here conspires against the king's life, he shall be in-
dicted and tried for treason, as another subject should be ; and the
reason is, because no man can shake off his country wherein he was
born, nor abjure his native soil or prince at his pleasure. This was
the case of Dr. Story, who had sworn alligeance to the crown of
Spain, and was here condemned and executed for treason. Vide
Camden's Eliz. 14 Eliz. p. 168.((/)[3]
Secondly, But if a foreigner being the agent, minister, or embas-
sador of a foreign prince either in amity or enmity with the king of
England come over with or without the king's safe-conduct, and
here conspire against the life of the king, or to raise rebellion or war
against him, some have been of opinion, that he may be indicted of
treason; but by the civilians he cannot, because he came in as a
foreign embassador representing the person of his prince, and there-
fore is not to be so dealt with in such case, but by the law of nations
may be dealt with as an enemy, not as a traitor ; and though he have
the pfotection and safe-conduct of the king of England, yet it is imder
a special capacity, and for a special end, namely, as a foreign agent ;
but if he be criminally proceeded against, it must be as an enemy by
the law of war or nations, and not as a traitor; but how far and in
what cases he may be dealt with as an enemy, remains to be further
considered. Camden\'i Eliz. sub anno \51\. p. \Q4:.
Thirdly, therefore those, that are most strict after the rights and
privileges of embassadors, yet seem to agree, that if he do not only
{(1) English folio.
[2] See ante, p. 60. in notis.
»■ [3] It has always been the law of England, that a natural born subject owes an alle-
giance to the crown, which is intrinsic and perpetual, and whic!) cannot be divested by
anyactorbisown. Storie's case, Dyer, 228, b. 1 Bl. Com. 370; and that no foreign letters
ol natilralization can in any manner take from him his allegiance, or alter his duty to
his lawful sovereign, Macdnnald's case, Fost. 60. And yet the British parliament nnt
unfreqiiently passes acts of naturalization, tiiereby aiding a foreigner to shake off that
natural allegiance to his own country, wliich they deny every other nation the power to
do in regard to British subjects.
VOL. I. 12
96 HISTORIA PLACITORUM CORONA.
conspire the death of the king or the raising a rebellion against him,
but actually attempt such an act, as actually or interpretatively is a
consummation thereof, though possibly the full effect thereof
r 97 3 ^° ^^^^ ensue, yet he may be dealt withal as an enemy, and
by the law of nations he may be put to death, as if he
should stab or poison the prince, and yet dotli not kill him, or raise
an actual rebellious army, or should levy an actual war against the
prince to whom he was sent, and in that prince's country, as
Fabius{e) the Roriian embassador to the Gauls, by challenging and
fighting with the champion of the Gauls ; Plutarch in vita jYumse,
the prince, to whom he is sent, may, without consulting the prince
that sends him, inflict death upon such an embassador by the law of
nations, as an enemy: " Consummata autem sunt, quoe eousque pro-
ducta sunt, quo produci ab hominibus solent, & quae delinquendi
iinem statuere solemus. Vide Albericus Gentilis, Lib. II. cap. 2. de
legationibus.^^
Fourthly, But in case of a bare conspiracy against the life of the
king, or a conspiracy of a rebellion or change of government, no-
varuni rerum molimina, there is great diversity of opinions among
learned men, how far the privilege of an embassador exempts him
from penal prosecution as an enemy for such conspiracies or incon-
summate attempts, that do not proceed farther than the machination,
solicitation, or conspiracy.
Upon ah attempt of this nature by the bishop of Rosse, agent and
embassador of the queen of Scots, 14 Eliz. the question was pro-
pounded to Lewes, Dale, Drury, Jlubry, and Jones, doctors of law,
viz.
"Whether an embassador, who stirreth up rebellion against the
prince to whom he is sent, should enjoy the privileges of an em-
bassador, and not be liable to the punishments of an enemy?"
They answered, that such an embassador hath by the law of na-
tions, and by the civil law of the Romans, forfeited all the privileges
of an embassador, and is liable to pimishment. See the rest of the
resolutions touching this matter Camden^s Eliz. sub anjio 1571. p.
164, 165. <5' ibidem p. 370.
Hereupon he was committed to the Tower, but yet no criminal
process against him as an enemy. [4]
(c) Fahivs Amhustus.
[4] See Ward's Hist. 2 vol. 486; Somers' Tracts, 1 vol. 186; 4 Inst. 153; Hawk. e.
17. 8. 5 ; Hah. 211 ; Salk. 630. It was lield in Rex v. Owen, 1 Rolle, 185, that if an am-
bassador corn|)ass the king's death, it is treason in him, althougli he would not be punished
for otlier treasons. Mr. Justice Foster says, that for murder and other offences of great
enormity, whieh are agait)st tlie liglit of nature and the fundatneiitai laws of all society,
ambassadors arc certainly liable to answer in the ordinary course of justice, as other
persons offendingr in the like manner are. For tliough they may not be thought to owe
allegiance to the sovereign, and so incapable of committing high treason, yet they are
to be considered as members of society, and* consequently bound by that eternal, uni-
versal law by which all civil societies are united and kept together. Disc. 1. s, 7.
After stating the above doctrine, Blackttone says, "But however these principles might
HISTORIA PLACITORUM CORONA. 98
And Mendoza, the Spanish embassador, who here in
Eni^land fostered and encouraged treason, was not dealt [ 98 ]
with according to the utmost severity, that possibly in such
cases might be used, but^as only sent away, sub anno 21 Eliz.
Camder/s Eliz. p. 2dQ. The lord U Jluhespine also, the French
embassador, that conspired the queen's death, was not proceeded
against criminally, but only reproved by Burghley, and advised to
be more careful for the future. Camden'' s Eliz. sub anno 15S7. p.
378, 379.
And upon these and some antient instances among the Romans
and Carthaginians learned men have been of opinion, that an
embassador is not to be punished as an enemy for traitorous con-
spiracy against the prince, to whom he is sent, but is only to be
remitted to the prince that sent him. Albericus Gentilis de Lega-
iionibus, Lib. II. cap. 18. Grolins de Jure Belli, Lib. II. cap.
18.(/) who gives these two instances in confirmation thereof.
The truth is, the business of embassadors is rather managed ac-
cording to rules of prudence, and mutual concerns and temperaments
among princes, where possibly a severe construction of an embas-
sador's actions, and prosecutions of them by one prince may at
another time return to the like disadvantage of his own agents and
embassadors; and therefore they are rather temperaments measured
by politic prudence and indulgence, than according to the strict
rules of reason and justice; for surely conspiracies of this kind by
embassadors are contrary to the trust of their employments, and
may be destructive to the state whereunto they are sent, and accord-
ing to true measures of justice deserve to be punished, as acts of
enmity, hostility, and treachery by private persons.
And altho of all hands it is admitted, that the prince, to wirom
the embassador is sent, is the judge of the miscarriage of such for-
eign embassador without any application to the master from whom he
is sent, and without any actual dedition or giving him up to the judg-
ment of the law; yet they assign this reason of the difference be-
tween a bare conspiracy or machination against the prince, and an
(/) in notis ad § 4. n. 5.
formerly obtain, tlie general practice of this country, as well as of the rest of Europe,
seems now to pursue the sentiments of the learned Groiius, that the security of
ambassadors is of more importance than the punishment of a particular crime." 1 Co?n.
254. See Vatd, ZJ. 4. c. 7. The Schooner Exchange \. McFaddon, 7 Cranch, }38, and
1 Kent's Cum. 37. 38, where the learned author comes to the contilusion that an ambas-
sador cannot, in any case, be made amenable to the civil or criminal jurisdiction of the
country to wliich lie is sent. The Act of Congress of the 30th April, 1790, declares
{srcts. 25. Sf 26.) void any writ or proces.s, whereby the person of any ambassador, or
oilier public minister, their domestic or domestic servants, may be arrested or im-
prisoned, or his or their goods or chattels may be distrained, seized or attached ; and
subjects the parties concerned to fine and imprisonment. This Act seems to take away
ail process of execation, civil as well as criminal, against the person or goods. Serg. oa
Cons. 90.
But if a foreign minister commits the first assault he forfeits his immunity, so far
as to excuse the defendant for returning it. U. S. v. Ortega, 11 Wteal. 467.
98 HISTORIA PLACITORUM CORON,^.
actual attempt of treason, whether against his person or
[ 99 ]] government, which hath attained as great a consumma-
tion as such embassador is able to effect, as procuring
the wounding of the prince, or an actual attempt to poison him,
tho death ensue not, or an actual raising of a rebellious army
against him; because in these latter the mischief is consummate, as
far as the embassador could effect it, and so prohibited not only by
the civil and municipal laws, but by tlie laws of nations; but incon-
sumnjate machinations, according to their opinions, are raised to the
crimen Ixsx majestatis by civil or municipal laws or constitutions;
and they think it too hard, that an embassador or foreign agent,
who doth sustinere personayn principis, should be obnoxious to a
capital punishment for bare machination or conspiracy, which is a,
secret thing and of great latitude; but this, as I have said, is rather
a prudential and politic consideration, and not according to the strict
measure of justice.
But now, altho it should be admitted that a foreign embassa-
dor committing a consummate treason is not to be proceeded againsJ^
as a traitor, but as an enemy; yet if he or his associates commit any
other capital offence, as rape, murder, theft, they may be indicted
and proceeded against by indictment in an ordinary course of justice,
as other aliens committing like offences ; for though those indictments
run contra paceyn regis, yet they run not contra ligeantise siias del)i-
tiim; and therefore, when in the late troubles the brother and ser-
vants of the Portugal embassador committed a murder in the Ex-
change,{g) they were tried and convicted by a special commission of
oyer and terminer directed to two judges of the common law, some
civilians, and some gentlemen, to proceed according to the ordinary
course, secundum, legem (§' consuetudinem regni Angliae, whereupon
some of them were convict by jury, and had judgment ; and, as I re-
member, some of them were executed.(A) And yet many
[ 100 ] civilians(/) allow the same privilege to the comites legati, as
to the embassador himself.
And the difference between proceeding against an alien (whether
embassador or other) in cases of felony and treason, is well illustrated
by the book of 40 ^ss. 25, where a Norman captain of a ship with
the help of English mariners committed robbery and piracy upon the
narrow seas ; the English pirates were convict and attaint of trea-
son,(>^) but the Norman captain was attaint of felony, but not of trea-
son, because it could not be said contra ligeantix sux debitum.
(ff) The New Exchange in llie Strand.
(h) Don Panlah'.on Sa, tlie embassador's brother, was condemned to die for it: he had
like to have prevented iiis execution by makin£f iiis escape out of Newgate; but he was
retaken, and belieaded on Towerhill, July 10, 1G54, tiic same day tlie embassador signed
the peace between England and Portugal.
(i) Dig. Lib, XLVIII. tit. G. ad leg. Jul. de vi puhlica. I. 7. Grot, de jur. Belli, Lib. II.
cap. 18. § 8. . .
(k) For before the 25 E. 3. piracy was petit treason. Co. P. C. 113. and tho' tijis
case be quoted in the 40 E. 3. yet it must be intended to have happened before the sta-
tute of 2.5 Ed. 3. because piracy, not bcin<r enumerated therein among the species of
treason, has never been counted treason since that statute. Co. /*. C, 8.
HISTORIA PLACITORUM CORONA. ]00
The queen consort the wife of the king, or the husband of the
queen regent, compassing the death of the king her husband or the
queen recent his wife, are persons compassing within this act. Co.
P. C. p. 8.
If. As to the second inquiry, what shall be said a king, queen, or
Iheir eldeat son, within this law,
1. The words our lord the king, S,-c., extend to his successor, as
well as to him.(/)
1. Because it is a declarative law.
2. Because usually acts of parliament speaking thus generally, and
not confining it to the person of that king, when the law passed, in-
clude his successor; therefore the statute of 8 H. 6. cap. 11, 23 Hen.
S. for Brewers. 27 H. 8. cap. 24, that were limited to continue during
the pleasure of our lord the king,(m) continued after that king's
death: Mich. 38 <§• 39 Eliz. Cro. Eliz. 513. Lord Darcie's case.
The statute of 11 //. 7. c. 1, of aiding our lord the king in his wars,
extends to the successor.(?i) Hill. 10 Jac. 12 Co. Rep. 109.
M. 24 Eliz. Moore 176. Coke Litt. 9. b.{o) But the statute [ 101 ]
of 34 ^ 35 H. 8. cap. 26, giving power to our said lord the
king to alter the laws of Wales, died with him;(/>) yet in majorem
cautelam it was specially repealed by the statute of 21 Jac. cap. 10.
2, The heir of the king is a king within this act the next moment
after the death of his ancestor, and commenceth his reign the same
day the ancestor dies; and therefore tlie compassing his death before
coronation, yea before proclamation of him, is a compassing of the
king's death, for he is a king presently upon the ancestor's death;
and the proclamation or coronation are but honorable ceremonies(5')
(Z) Vide Co. P. C. p. 6,
(w) Of these statutes the first only is so limited; but the 23 H. 8, cap. 4. sect. 5, 14.
and 27 Hen. S. cap. 24. sect. 10. only name the king- without the addition of his heirs and
successors. 10 H. 7. 7. b. it is said by Kcble with relation to 9. H. G. cop. 2. and not denied
by the court, that where a statute limits to continue so long as it shall please our lord
the king, it continues in force, if no proclamation be made to the contrary in the times
of that king or of any of his successors.
(n) This statute comes not up to the point, because the words of it are not, our lord
the king, but the king and sovereign lord of this land for the time being. Our author
seems to have intended the Irish statute of 10 H. 7. called Poijning^s act, upon which
act a doubt was conceived, whether it extended to the successors of H. 7. for that the act
speaks only of the kin;^ generally, and not of his successors; the chief justices, chief
baron, attorney and solicitor general were of opinion, that the word king imported his
politic capacity, which never dies; and therefore being spoke indefinitely, extended in
law to all his successors, and was so expounded by an Irish act in the 3 «.V 4 Fhil. &■ Mar.
12.Co.Rep.H)9. i J i i
(o) The case in Moore relates to statutes during the pleasure of the king: the words
are, " Wahnesley moved a question, whether the demise of the king determines a statute
limited to continue during the king's pleasure, and the whole court agreed that the de-
mise of the king determines his will."
(p) The words of that statute, § 119. are, "That the king's most royal majesty shall
and may, &,c. as to his most excellent wisdom and discretion shall be thouglit conveni-
cnt; and also to make laws, .Slc. at his majesty's pleasure." It was resolved by the
justices, nil. 5 Jac. 12 Co. Rep. 48. that this was a temporary power, and confined to
the person of king //cnry VIII. Vide Plowden, 176. b. &;c. 458. a.
iq) The coronation is something more than only an honourable ceremony, for it is a
Bolenin engagement to govern according to law, which was always required by the
101 HISTORIA PLACITORUM CORONA.
for the farther notification thereof: resolved 1 Jac. in the case of
Watson and Clerk. Co. P. C. p. 7.
3. Tlie queen regent, as were queen Mary and queen EUzabethj
is a king within this act.(r)[5]
4. A iiing de facto but not de Jiire,{s) such as were H. 4. H. 5.
ancient constitution of the iiingdom. Brompton speaking of the coronation of W. I. says,
the archbishop of York performed the office. Ipsumque Gulielmum regem ad jura eccle.
sice AnglicanoB luenda Sf conservanda, populumque suum rede regendum, Sf le'/es rectus
statuendum sacrumento solemniter adstrinxit; and Brad. Lib. 111. cap. 9. says, that the
king of^ England debet in coronations sua in no?nine Jesu Ckristi pnestito Sacramento
h(EC tria promittere populo sibi subdito, Sfc, See also 1. W. S( M. cap. 6.
(r) Vide Co. P. C. p. 7. This appears by the declarative law in favour of queen
Mar II, 1 Mar. cap. 1 sess. 3.
(s) This distinction, which with respect to the kingly office was never known \n our
law before the statute of 1 E. 4. seems to have been purposely invented to serve the turn
of the house of York; nor do I find any such distinction ever mentioned or supposed in
any of our ancient law-books, save only in BagoVs case, 9 E. 4. \.b. cited by our author,
p. 61. for the doubt conceived by Markham, 4 E. 4. 43. a, concerning the authority of
coroners chosen in the time of H. 6. was not founded (as some have supposed) on H. 6.
being only king de facto, but on another point, viz. whether the demise of the crown did
not determine the power of coroners, as it does the commissions of judges and other com-
missioners; and as to BagoVs case, if carefully considered, it will but little serve the
purpose of such a distinction, for the principal point in that case was concerning the
validity of letters patent of denization granted to Bagot by H. 6. whether they were void
by the act of 1 E. 4. set forth in the pleadings; this point was not argued by the judges,
but by the searjeants and apprentices, 9 E. 4. 2. a. ii; will therefore be necessary to dis-
tinguish the discourse of the counsel from the resolution of the court.
BagoVs counsel asserted, "That all judicial acts relating to royal jurisdiction, which
were not in diminution of the' crown, though done by an usurper, would nevertheless
bind the king de jure upon his regress, that H. 6. was not merely an usurper, the crown
having been entailed on him by parliament, that BagoVs denization was an advantage to
the prince on tiie throne, for tlie more subjects he had, the better it was for him ; and
they likened it to the case of recoveries suffered in a court-baron, while the disseisor was
in possession, which would continue in force notwithstanding the re-entry of the dis-
eeisee."
This was all that could be expected for them to say, considering tliat E. 4. was then
on the throne, and they were obliged to admit, that grants of the regal revenue made by
H. 6. were void against E. 4. because tiie act of parliament of E. 4. which declared H. 4.
H. 5. and H. 6. usurpers, vested in E. 4. all such manors, castles, honours, liberties, fran.
chises, reversions, remainders, &c. and all hereditaments with their appurtenances, whatso.
ever they icere, in England, Wales, and Ireland, arid in Calais, as king Richard //. hud
on the feast of St. Matthew the twenty-third year of his reign in right of the crown of
England and lordship o/ Ireland: all mesne grants therefore of such manors, Sfc. were
by this act indisputably defeated.
l^he counsel on the other side objected, *' That the letters patent of denization were
void, for that the king ought not to be in a worse condition than a common person; and
that if a common person were disseised and re-entered, his re-entry would defeat all
mesne acts; and that therefore E. 4. being in by descent from king Richard, and this act
being but an affirmance of the common law, his regress would avoid ail acts done by the
usurper, for wliicii reason provision was made in that act for grants of wards, licenses of
mortmains, charters of pardon, and judicial acts, but no provision was made for grants
of denization ; tiiat the patent in controversy was to the disadvantage of the king, since
it was not reasonable, that such an alien should be made his subject against his will, for
by the same reason H. 6. might have made twenty thousand Frenchmen denizens ; that
if a league was made between //. 6. and another king, it would not bind E. 4. and yet
such league is intended for the advantage of the realm; that an exeniption granted by
//. G. from being put ujion juries in assises, iSpn. would now be void."
Here Billing the chief justice interposed and said, / do not agree to this; he added,
" It pertains to every king by reason pf his f^ice to do justice and grace, justice in execu-
[5] R. V. Oxford, 9 C. Sf P. 525.
HISTORIA PLACITORUM CORONiE. 102
H. 6. /?. 3. H. 7. being in the actual possession of the crown is a
king within this act, so that compassing his death is treason
within this law; and therefore the 4 E.4.20. a.,{t) a person [ 103]
that compassed the death of H. 6. was attainted for that trea-
son in the time of the rightful king; but had it been an act of hos-
tility in assistance of the rightful heir of the crown, (*) which after-
wards obtained, this had not been treason, but e converso those that
assisted the usurper, though in actual possession of the crown, have
sutfered as traitors, as appears by the statute of 1 E. 4,(t) and as was
done upon the assistants of H. G. after his temporary re-adeption of
the crown in 10 ^. 4. and 49 i/. 6.
5. A king admitting by act of parliament his son in consortium
imperii, as was done by H. 2. whereby there was rex pater and rex
filius, only the father reserved to iiimself the lige homage or allige-
ance of his subjects, yet tlie son actually administered the kingdom;
•
ting the laws, &c. and grace in granting pardon to felons, and such legitimation as this
is." Yelverlon seemed at first to think that the denization was void, not because the
regress of E. 4. avoided all mesne acts done by H. 6. but because the acl of 1 E. 4. re-
sumed all liberties and franchises, and denization being a liberty was therefore resumed.
The cause was adjourned, during wiiich time it was abated by the death oi Swirenden
one of the plaintiffs; a new assise was brought by Bwrot, and the same matter was
pleaded as before; the assise was taken, and the verdict was in fitvour of Bagot 9 E. 4.
5. the defendant's counsel moved in arrest of judgment, and Brian (who was of counsel
against Ba^ol, and not one of the judges) repeated the former objection, that since E. 4.
was in possession by remitter, as cousin and fieir of king Richard, the patent of deniza-
tion by H. 6. who was but an usurper and intruder was void, 9 JF. 4. 11. but the justices
said, that they had conferred upon all points of this case with the justices of tlie common
pleas, and they were all of opinion, that those matters were not sufficient to arrest judg-
ment; and accordingly judgment was given for Bagot 9 E. 4. 12. a. abridged in Br. Pa-
tents 21. Denizen 'i, Chartre de Pardon 22. Exemption 4, Judgment i2. F. Assise 29.
Denizen 1. _
From this state of the case it appears, that the question was entirely upon the con-
struction of an act of parliament, and not upon any maxims of common laic; and tho
it was said, that that act was an affirmance of the comrn'on law, yet that was only the
saying oi counsel, and unsupported by any book-case or record: so that the distinction
here taken by our author between a rex de facto and a rex de jure being no way war-
ranted by the constitution or common law of this kingdom, all that is here said by him
on that supposition must fall to the ground.
{() This case is cited before by our author, p. 61. but is somewhat differently related
in Sloio's Annals, p. 418. Seld. Titles of Honour, cap. 5. p. 654.
(*) But who shall take upon them to determine who that is? Our author therefore
prudently adds, which afterwards obtained, for this is the most effectual way of deciding
questions of this nature; hut then by the same rule, if he should not obtain, such act of
hostility had been treason, for it cannot be imagined, that any prince in the actual pos-
session of the government will suffer his own title to be disputed, nor indeed is it fitting,
that private subjects should set themselves up for judges in such an affair, whose duty it
IS to pay a legal obedience to the powers that are in i'act set over them ; for the powers
that be, are ordained of God. Rom. xiii. 1.
This serves to show how idle the distinction is between a rex de jure and a rex de
facto, which is not only founded on a precarious bottom, but also must in fact prove a
distinction without a difference, being equally serviceable to all sides and parties; and
thus it was iu regard of H. 6. and E. 4. who were both of them by turns declared by par-
liament to be rij/hlful kings and usurpers.
(t) This must have been for acts before E. 4. first obtained the crown, and therefore
was wrong according to our author's own doctrine, because, as he says below, even the
nghtdil heir before he has got possession of the crown is not a king within the statute
of 25 £. 3. --
103 HISTORIA PLACITORUM CORONiE.
the father continued a king, and a treason committed against
[ 104 ] liiiii by his son or any of iiis subjects was treason within this
act; and so was the son a king within this act, as in. refer-
ence to all but the father, a subordinate king, that had the j.ura
imperii, as the king ei Scots was after his homage done to king
Edward I. and therefore compassing his death by any of his subjects
had been high treason within this act, if it had been then made; for
it is mistaken in lord Coke's P. C. p. 7. that H. 2. resigned his crown,
for he continued still rex de facto 4* de jure, as Hoveden tells us.
Vide snpra cap. 10.
Having thus shewn who is a kii]g within this act, we shall the
more easily see who is not a king within this act.
1. The right heir of the crown, during such time as the usurper is
in plenary possession of it, and no possession thereof in the heir, is
not a king within this act ;[6] such was the case of the house of York
during tlie plenary possession of the crown in H. 4. H. 5, H. 6. but
if the right heir had once the possession of the crown as king, though
an usurper hath gotten the possession thereof, yet the other continues
his style, title and claim thereuilto, and afterwards re-obtains the full
possession thereof, a compassing the death of the rightful heir during
that interval, is a compassing of the king's death within this act, for
he continued a king still, quasi in possession of his kingdom ;[7] this
was the case of E. 4. in that small interval, wherein H. 6. re-obtained
the crown, and the case of E. 5. notwithstanding the usurpation of
his uncle ^.3.
2. If a king voluntarily resign, as some in other countries have
done, and this resignation admitted and ratified in parliament, he is
not afterwards a king within tliis act;(?/) but we never had such an
example in England, for that of ^. 2. was a constrained act, touch-
ing which and tlie deposition of E. 2. I shall not say farther, for they
were acts of great violence and oppression.
Only thus much is certain, that although E. 2. had a kind
£ 105] of pretended deposing, and his son E. 3. took upon him the
kingly name, and office, yet in the opinion of those times E.
2. continued, as to some purposes, his regal character, for in the par-
liament of 4 E. 3. Mortimer, Berisford, Guerney, and others had
judgment of high treason given against them for the death of E. 2.
after his deposition.
Neither was this judgment grounded simply upon that old opinion
(m) Tlie same reason holds in tlic case of a king-, who is deemed by parliament to have
abdicated, or by actions subversive, of the cotisliliition virtually to have renounced the
government; this was the case of king Jumes II. who, tho not in words, yet by acts
and deeds equally expressive had renounced liolding the crown upon the terms of the
constitution. .'
• . -. T ■■ . ,, , • - • _
[6] A king may be kept out of the exercise of the kingly office, (as Charles II. was
for twelve year.s, Ijy Croitiiiull,) and still be a king, bntli de facto and de jure; and all
acts done to keep liim out are high treason. Sir Henry Vane's case, Kel. 15. Fost, 402,
[7] This is denied by Foster, pp. Icti. 398.
HISTORIA PLACITORUM CORONA. 105
in Bn'/fo}i,{x) that killing of the king's father was treason ; for,
though in some parts of that record, as in the judgment of the lords
against Mortimer, the words are, Touchant le mort seigneur Ed-
ward pere nostre seigneur le ,roy, qe ore est, — countes, barons, &
peres, come jugges de parlement, agarderent & adjuggerent le dit
Foster, come trelor & enemy de roy & de realme, feust treine &
pendu; yet in other parts of that roll of parliament he is styled at
the time of his murder seignior lige, and sometimes rex, as n. 6.
The lords make their protestation, that they are not to judge any but
their peers; yet they declare that they gave judgment upon some
that were not their peers, in respect of the greatness of their crimes ;
et ce per encheson de murder de seigneur lige, fyc. and in the
arraignment of Thomas lord Berkele for that oifense, the words of
the record are, Qualiter se velit acquietare de morte ipsius domine
regis, who pleaded, Quod ipse de viorle ipsius douiini regis in
nullo est inde culpabilis; and the verdict, as it was given in parlia-
ment, 4 E. 3. n. 16. and the record is. Quod prsedictus Thomas iti
nullo est culpabilis de m,orte prsedicti domini regis patris domini
regis nunc ; so that the record styles him rex at the time of his death,
and yet every one acquainted with history knows, that his son was
declared king, and took upon him the kingly office, and title upon
the twenty-fifth, or, according to IVulsinghani, the twentieth of
January; and E. 2. was not murdered till the twenty-first oi Sep-
tember following.
I have been the longer in this instance, though it were before the
making of the statute of 25 E. 3. when treason was determined
according to the common law, that it may appear, that this
judgment was not singly upon this account, that he was f 106 1
father to king E. 3. but that notwithstanding the formal
deposing of him, and that pretended or extorted resignation of the
crown mentioned by the histories of that age, yet they still thought
the character regius remained upon him, and the murder of him
was no less than high treason, namely, the killing of him who was
still a king, though deprived of the actual administration of his king-
dom.
3. The husband of a queen regent is not a king within this law,
for the queen still holds her sovereignty entirely, as if she were sole :
vide 1 Mar. cap. 2. sess. 3. and for the remedy hereof there was a
special temporary act made enacting and extending treason as well
to the compassing of the death of king Philip of Spain husband to
queen Mary, as of the queen, and for the making of other acts against
the king, as against the queen, within the compass of high treason,
during the continuance of the marriage between them. 1 (§• 2 Phil.
Sf' Mar. cap. 10. so that it seems, tho the husband of a queen
regent be as near to him, as the wife of a king regnant, the statute
Ot 25 E. 3. declaring the comi)as^ing of the death of the king's wife
to be treason, did not extend to the husband of a queen regent. (y)
(j:) Brit. cap. 22. Co. P. C. p. 7. (y) Co. P. C. p. 6, 7.
VOL. I, — 13
106 HISTORIA PLACITORUM CORON,^.
4. A prorex, viceroy, custos resent, ox jiisticiorius Jlnglix, which
import ill substance the same office, viz. the king's heiitenant in his
absence out of the kingdom, is not a king within this act,(2) though
his power be very great, and all commissions, writs and patents pass
under his teste ; and the same law is touching the lord lieutenant or
justitia7'it(s Hiberniae or his deputy. Vide .statu/. Hibernian.
Rot.. Pari. 31 H. 6. n. 3S. 4- 39. Richard duke of York by the
king's letters patent, and by consent of parliament, was constituted
protector &)- defensor regni, S,' ecclesix Anglicanse S/- consiliarius
regis principalis, till the full age of the prmce, or till discharged of
that employment by the king in parliament by the consent of the
lords spiritual and temporal; though this were a high office, and.
exceeded much the power of a protector of the king during
[ 107]] his minority, such as were the earl of Per)ibroke to H. 3.
and the duke oi Somerset to E. 6, yet this protector was not
a king within this statute,
III. I come to the third division, what shall be said a compassing
or imagining of the death of the king, queen, or prince.
The words compass or imagine are of a great latitude.
1. They refer to the purpose or design of the mind or will, tho the
purpose or design take not etfect.
2. Compassing or imagining singly of itself is an internal act, and
without something to manifest it, could not possibly fall under any
judicial cognizance, but of God alone; and therefore this statute
requires such an overt-act, as may render the coiupassing or imagin-
ing capable of a trial and sentence by human judicatories.
And yet we find that other laws, as well as ours, make compassing
or conspiring the death of the prince to be crimen Isesx mojestatis,
though the effect be tfoi attained.
Ad legem Jitliam majesiatis in Codice(«) in the law of Honorius
and Arcadius, Quisquis cum militibus, vel privatis, vel barbaris sce-
lestam inierit factionem, vel factionis ipsius susceperit sacramentum
vel dederit, de nece etiam virorum illustrium, qui consiliis & consis-
torio nostro iiUersunt, senatorum etiam (nam & ipsi pars corporis nos-
trisutU,) velcujustibet postremu, qui nobis militat,cogitaverit, (eadem
enim severitate voluntatem sceieris, qua etfectum, puniri jura volue-
runt) ipse quidem, utpote majesiatis reus, gladio feriatur, bonis ejus
omnibus fisco nostro addilis.
A bare accidental hurt to the king's person, in doing a lawful act,
without any design or compassing of bodily harm to the king, seems
not a compassing of the king's deatli within this act.
Walter Tirrcl by command of IViUiam Rufus shot at a deer;
the arrow glanced from an oak, and killed the knig; Tirrcl fi'd, but i
this being purely accideutal, without intention of doing tlie king any
harm, hath been held not to be a compassing of the king's death.
Co. P. C.p. 6. Paris ^' Hovcden anno tilt. IVillieimi secundi.
Calculating of the king's nativity, or thereby or by witchcraft, &c.
(2) Co. I\ C. p. 8. (a) Lib. IX. tit. 8. I. 5. pr.
HISTORIA PLACITORUM CORON.E. 108
seeking to know, and by express words, writing, &c. publishing
and declaring how long the king shall live, or who shall succeed him,
or advisedly or mahciously to that intent uttering any prophecies,
seems not a compassing of the king's death within the statute of 25
E. 3.{h) but was made felony during the life of queen Elizabeth by
23 Eliz. cap. 2 and before that, was only punishable by fine and
ransom. Co. P. C. p. 6,
Compassing the death of the king is high treason, (c) though it be
not edected ; but because the compassing is only an act of the mind,
and cannot of itself be tried without some overt-act to evidence it,
such an overt-act is requisite to make such compassing or imagina-
tion high treason. [S] Ee quo infra.
IV, Therefore as to the overt-act in case of compassing the death
of the king, queen, or prince.
1. Tiiough the words in the statute of 25 E. 3. and he provably
thereof attaint by open deed, &c. come after the clause of levying of
war, yet it refers to all the treasons before-mentioned, viz. compass-
ing tlie death of the king, queen, or prince. Co. P. C. 6. 12. and
therefore what is said here concerning the compassing of the death of
the king is applicable to queen and prince.
And therefore in an indictment of treason for compassing the death
of the king, queen, or prince, there ought to be set down both the
treason itself, viz. Quod preditorie compassavit & imaginatus fuit
mortem & destructionem domiui regis, & ipsum dominum regem in-
terficere, and also the overt-act, & ad illam nefandam & preditoriam
compassationem & propositum perimplend', and then set down the
particular overt-act certainly and sufficiently, without which the in-
dictment is not good. Co. P. C. p. 12.
2. If men conspire the death of the king and' the manner,
and thereupon provide weapons, powder, harness, poison, or [ 109 ]
send letters for the execution thereof, this is an overt-act
within this statute. Co. P. C.p. 12.
3. Though the conspiracy be not immediately and directly and
expressly the death of the king, but the conspiracy is of something
that in all probability must induce it, and the overt-act is of such a
thing as must induce it ; this is an overt act to prove the compassing
of the king's death, which will be better explained by the instances
themselves, and therefore,
4. If men conspire to imprison the king by force and a strong hand,
till he hath yielded to certain demands, and for that purpose gather
company or write letters, this is an overt-act to prove the compassing
(h) Even before UiA statute, viz. Hit. 18. E.2, Rot. 24. rex coram rege, there was an
instance of several persons charged with endeavouring to conipass the king's death by
necromancy by making his image in wax, 6fC. yet they were appealed only de felonio
6f malrjicio, and were all aequilled by the jury.
(f) Insomuch that where the king is actually murdered, it is the compassing his death
which is the Ueason, and not the killing, which is only an overt-act. Kel. 8.
[8] Overt acts must not only show the intentions of the heart ; but they are tiie means
made use of to effectuate the purposes of the heart. Fusi. 203.
109 HISTORIA PLACITORUM CORONA.
of the king's death, for it is in effect to despoil him of his kingly
government, and so adjudged by all the judges in the lord Cohham's
case, 1 Jac.(d) and in the case of the Earl of Essex, 43 Eliz.,{e) Co.
P. C. p. 12. But then there must be an overt-act to prove that con-
spiracy to restrain the king, and then that overt-act to prove such
a design is an overt-act to prove the compassing the death of the
king.
But then this must be intended of a conspiracy forcibly to detain
or imprison the king; and therefore, when in the time of E. 2. in
parliament a commission was somewhat hardly gotten from the king,
which seemed to curb his prerogative too much, the answer of the
judges to the general question, " Qualem poenam merentur illi, qui
compulerunt sive arctarunt regem ad consentiendum diet' statut' ordi-
nation' & commission' ? ad quam qusestionem unanimiter responde-
runt, quod sunt, ut proditores, merito puniendi, ^o/. Par/. 11. R,
2."(/) was too rash and inconsiderate, and for which the judges them-
selves were condemned as traitors, as before is shown ;{g) for compiil-
er\inldi\'\A arctaverunt may have a double construction ; either it may
be intended of an actual force used upon the person of the king, as
by restraint, imprisonment, or injury to his person, to enforce
[ 110 3 his consent to that commission ; and then it had not differed
from the execrable treason of the Spencers, who declared,
that since the king could not be reformed by suit of law, it ought to
be done per aspertee, for which they were banished by two acts of
parliaraent.(A) Vide 7 Co. Rep. fol. 11. in Calvin's case. 2. Or it
might be intended, not of a personal compulsion upon the king, but
by not granting supplies, or great persuasion or importunity, and then
it could not be treason; the latter whereof was the only compulsion
or arctation, which was used for the obtaining that commission.
And therefore the judges that delivered that opinion, were inex-
cusable in their decision of treason under such ambiguous and large
expressions of cojnpulerunt <5' arctaverxini; and tho the parlia-
ment of 11 R. 2. was repealed by 21 R. 2. yet that again was re-
pealed 1 H. 4. cap. 3.
5. A conspiring to depose the king, and manifesting the same by
some overt-act, is an overt-act to prove the compassing of the death
of the king within this act of 25 E. 3. Videl Mar. B. Treason 24. {i)
Co. P. C. p. 12.
(d) Slate Trials, Vol. J. p. 206. (e) State Trials, Vol. I. p. 199.
(/) State Trials, Vol. I. p. 9. > i<r) rap. W.p.'M.
{h) One in the reinfn of Edward 11. called" Exilium Hugonis le Spencer; wad the other
in anno 1 Edvxtrd 111. cap. 1. .
(!) Broke makes this quare : "Quaere vel depriv , car home polt depriver, & uncoro
intctide null morte, cSt pur ccst cause un statute I'uit cut fait tempore H. 8. tSf E. 6. Nuta."
The statutes here referred to are 2G //. 8. cup. 13 by which it was made hif;ii treason
"to wish or desire by words or wiilinjr, or to iinajriue, or invent, or attempt to deprive
the kinjr, tlic queen, or tlieir heirs apparent of the din^nity, title, or name of their royal
estates." And 1 E. 6. cap. 12. by which it was made highly penal (for the third offense
liifjh treason) "to compass or imagine by open preachiiijr, express words or sayinj^s, to
de[)ose or deprive the king, his Ijcirs, or successors, kings of this realm, from his or their
royal estate or titles to or of tlic realm aforesaid."
HISTORTA PLACITORUM CORONA. HO
It is true, that by the statute of 21 i?. 2. Ca. 3. it was enacted,
That every man that compasseth or purposeth the death of the
king, or to depose him, or to render up his homage ht^ge, or he that
raiseth people, and rideth against the king to malje war within his
realm, and of tliat be duly attainted and adjudged in parliament,
shall be adjudged as a traitor of high treason against the crown;
and this act is particularly repealed by the statute of 1 H. 4. cap. 10.
as a great snare upon the subject ; for it is recited, that by reason
thereof no man knew hoiv he ought to behave himself, to do, speak,
or say, for doubt of such pains of treason.
But the true reason was not in regard of the four points
themselves, for many of them were treasons within the [ 111 ]
statute of 25 i5. 3. but that wherein the act of 21 R. 2. varied
from the act of 25 E. 3. were these: 1. That the. compassing to levy
war is made treason by the statute of 21 i?. 2. whereas the levying
of war only was treason by 25 E. 3. Again 2dly, Tho compass-
ing the death of the king was treason within the letter of 25 E. 3.
and compassing to depose him was an evidence or overt act of a
compassing of the king's death within the meaning of the act of 25
E. 3. yet both required an overt-act. The statute of 21 B. 2. makes
the bare purposing, or compassing, treason, without any overt-act;
and though it restrains the judgment thereof to the parliament, yet it
was too dangerous a law to put men's bare intentions upon the judg-
ment even of parliament under so great a penalty, without some
overt-act to evidence it: this was one reason of the repeal of the
treasons declared by the statute of 21 /?. 2. But this was not all, for
in that parliament of 21 B. 2. the resolutions of the judges to the
questions propounded by the king are entered at large, and received
an approbation not only by the suffrage of some other judges and
Serjeants, but by the statute made in the same parliament, as appears
at large by the statute of 21 B. 2. cap. 12.
And therefore, wholly to remove the prejudice that might come to
the king's subjects by those rash and unwarrantable resolutions, the
statute of 1 H. 4. Ca. 10. was made, reducing treasons to the standard
of 25 E. 3. and the entire parliament of 21 B. 2. also repealed as
app^ears 1 H. 4 Ca. 3.
6. Regularly words, unless they are committed to writing, are not
an oven-dict within this statute. Co. P. C. p. 14;(A?) and the rea-
son given is, because they are easily subject to be mis-
taken, or misapplied, or misrepeated, or misunderstood by [ 112]
the hearers.(/.)
(h) Vide. Co. P. C. p. 38, 140. The passages quoted 5". P. C. 2. b. from Braclon and
Britton, only describe the forin of accusation, but are far from proving that words alone
were, in the opinion of those writers, a sufficient evidence of treason ; but if they were so
at common law, yet it d6is not follow, that they would be so by the statute of 25 E. 3.
which expressly requires the proof of an overt-act, and consequently disallows the evi-
dence of bare words, for words and acts are contra-distinguished from each other. See
Co. P. C. 14 in inarjiiTie. The preamble of 1 Murioi, cap. 1. sess. 1. makes it matter of
complaint, that many had for words only suffered shameful death.
Cl) This is one but not the only reason, for another reason was, because men in a pas.
112 HISTORIA PLACITORUM CORONA.
And this appears by those several acts of parhament, which were
temporary only, or made some words of a high nature to be but
felony. Co. P. C. cap. 4. p. 37. The statute of 3 H. 1. cap. 14.
makes conspiring the king's death to be felony; which it would not
have done, if the bare conspiring without an overt-act had been
treason.
26 H. 8 cap. 13. malicious publishing by express writing or words,
that the king were an heretic, schismatic, tyrant, infidel, or usurper,
enacted to be high treason. (m)
1 E. 6. cap. 12. If any person or persons do affirm or set forth by
open preaching, express words or sayings, that the king, his heirs or
successors, is not or ought not to be supreme head of the church of
England and Ireland ; or is not or ought not to be king of England,
France^ and Ireland; or do compass or imagine by open preaching,
express words or sayings to depose or deprive the king, his heirs or
successors from his or their royal estate or titles aforesaid, or do
openly publish or say by express words or sayings, that any other
person or persons, other than the king, his heirs or successors, of right
ought to be kings of this realm; every such offender being convicted,
for his first oflense shall forfeit his goods, and be imprisoned during
the king's pleasure; for the second otTense shall lose his goods and
the profits of his lands during \\{e, and shall suffer imprisonment dur-
ing life ; and the third offense is made high treason.
But if this be done by writing, (?z) printing, overt-deed, or act, then
every such oflense is high treason by the act of 25 E. 3.[9]
sion or heat might say many things, which tliey never designed to do; the law therefore
required, that in a case of so nice a nature, where the very intention was so higlily penal,
the reality of tliat intention should be made evident by the doing of some act in prosecu-
tion thereof.
(/«) This same statute makes it high treason to wish or desire by words or writing to
deprive the king of his dignity.
(n) This is said by Lord Coke, P. C. 14. and in Sidney^s case. State Tr. Vol. III. p.
733. it is said, scribe est efjere ; qucere tamen, for if our author argues rightly, that words
were not treason by 25 E. 3. because tliere needed new acts to make them so in particu-
lar cases afterwards, the same argument holds good with respect to writing, especially if
not published; for there were also new acts to make that treason.
[&] Although writings cannot be laid as an overt act, unless published, yet if they tend
to prove any overt act laid, they shall be admitted in evidence for that purpose, although
never ])ublish<Ml. R. v. Lord Preston, 4 St. Tr. 410. 440. R. v. Layer, 6 St. Tr. 272. R.
V. Watson, 137. And the pa])ers found in Sidney's closet, had they been plainly relative
to tiie otlier treasonable practices charged in the indictment, might have been read in
evidence against him. Fost. 198. 4 lU. Com. 80. The papers found in Lord Preston's
custody, those found where Mr. Laijer had deposited them, and the intercepted letters
of Dr. Hensey, were all read in evidence as overt acts of the treasons respectively charged
on them ; for tliey were all written in prosecution of certain determinate purposes which
were treasonable, and then in coritoinplation of tiie offenders; and such papers being
found in the custody of the prisoners are admissible in evidence, without any proof of
the hand-writinir bein;r theirs, ^'reo-jr's ('use, 10 iS7. Tr. Appdx. 77. Dr. Hensei/'s Case,
Burr. 614. Kvidenee of the same nature was received in the case of Home Tooke and
others, at tl)e Old Bailey, in 171)4, as also in Stone's Case, Ilil. 36 Geo. 3. And iitot only
was evidence received of such papers as were foimd in their own possession, but also of
such as were found in the possession of tlieir accomplices; the connexion between them
being first proved. 1 East, P. C. IIU.
HISTORIA PLACITORUM CORONA. 113
So much of this act, as concerns any thing in derogation
of the papal supremacy, is repealed by the statute of I S,' 2 [ 113 ]
Fh. S,' M. cap. 8. And so much as concerns treason, farther
than it stands settled by 25 E. 3. is repealed by the statute of 1 Mar.
cap. 1. sess. 1. But the rest of this act, that concerns only misde-
meanors, stands perpetual, as it seems.
Bv 1 (§• 2 P. 4* M. cap. 9. Prayers by express words, that God
v/ould shorten the queen's days, or take her out of the way, or such
hke malicious prayer, amounting to the same effect, made treason;
but if person penitent upon his arraignment, no judgment to ensue ;(o)
the like provision is made daring the queen's life by 23 Eliz. cap. 2.
1 4'2 P. ^' M. cap. 10. Compassing to levy war against the queen,
or to depose her or the heirs of her body, and maliciously, advisedly,
and directly uttering such compassing by open preaching, express
words or sayings; and also affirming by preaching, express words
or sayings, maliciously, advisedly and directly, that the queen ought
not to be queen of this realm, is punishable by loss of goods and
chattels, whole profits of the offender's lands during life, and perpe-
tual imprisonment ; and the second offense is made high treason ;
but if this be done by writing, printing, or overt-act, then it is made
high treason.
1 Eliz. cap. 5. the same act almost verbalim for the safety of
queen Elizabeth and the heirs of her body.
By 13 Eliz. cap. 1. Compassing the death or bodily harm of the
queen, or to deprive her of the imperial crown, or to levy war against
her; at)d such compassing, maliciously, expressly or advisedly uttered
or declared by printing, writing, cyphering, speech, words or sayings;
and also malicious, advised and direct publishing and declaring by
express words or sayings, that she ought not to be queen, that she
is an heretic, schismatic, tyrant, infidel, or usurper, is made high trea-
son in the principal, procurers and abettors. (;;)
14 Eliz. cap. 1. Compassmg to take, or detain, or burn
the queen's castles, and such compassing declared by any [ 114 ]
express words, speech, act, deed, or writing, is made felony ;
but the actual taking, or vvith-holding, or burning them, is made
treason.
13 Car. 2. cap. 1. Compassing the death of the king or any bodily
harm tending to his wounding, imprisonment, or restraint, or to de-
p'ose him, or to levy war against him, or to stir foreigners with force
to iiivade the kingdom, and such compassing declared by printing,
writing, preaching or malicious and advised speaking, is made high
treason: publishing or affirming the king to be an heretic or a papist,
or that he endeavours to bring in popery ; or inciting the people by
(o) This last clause extended to such only, who had been g^uilty during tliat session of
parliament, for the act had a retrospect to the beginning of the session.
(p) " The indictments and attainders of treason by Ibrce of tliis statute are not more
to be lollowed; because the statute, which made them good, is expired." Co. P. C. p. 10.
in the margin.
114 HISTORIA PLACITORUM CORONiE.
writing, printing, preaching, or other speaking to hatred of his ma-
juSty or the government, disables to hold office. («7)
By ail which it seems, that regularly, 1. words of themselves can-
not make high treason ; 2. words of themselves are not a sufficient
overt-act within the statute of 25 E. 3. to serve an indictment of com-
passing the king's death. [10]
And with this agrees that notable case of Mr. Pi/ne in Crake's re-
ports, T. 4 Car.{r) the words of which are these : " Upon considera-
tion of the precedents of the statutes of treason it was resolved by
the seven judges there named, and so certified to his majesty, that the
speaking of the words there mentioned, tho they were as wicked
as might be, were not treason; for they resolved, that, unless it were
by some particular statute, no words will be treason; for there is no
treason at this day, {viz. 4 Car. 1.) but by the statute of 25 E. 3. for
imagining the death of the king, S,'c. and the indictment must
[ 115] be framed upon one of the points in that statute; and the
words spoken there can be but evidence to discover the cor-
rupt heart of him that spake them; but of themselves they are not
treason, neither can any indictment be framed upon them."
Baker in his Chronicle, p. 229, tells us of two very hard judg-
{q) No penalties are to be incurred by this act, unless the prosecution be within six
months next after the offense committed. See also the 4 Ann. cap. 8. and 6 Ann. cap. 7.
whereby it is made high treason to declare by writing or printing-, that the queen is not
lawful or rightful queen, or that any other person hath right to the crown otherwise than
according to tlie acts of settlement, or that the kings or queens of this realm by autho-
rity of parliament are not able to make laws of sufficient force and validity to bind the
descent of the crown: persons who declare the same by preaching or advised speaking
incur a prmmunire ; but no prosecution to be for words spoken, unless information be
given upon oath before a justice of peace within three days after, and the prosecutioa
be witliin three months after such information.
(r) Cro. Car. 125.
[10] This doctrine is maintained with great ability by Sir Michael Foster, see his C
L. 202 et seq : Bluckstone, (4 Cum. 80.) says, "But now it seems clearly to be agreed
that, by the common law and the statute of Edw.'S. words spoken amount only to a high
misdemeanour, and no treason. F'or they may be spoken in heat, without any intention,
or be mistaken, perverted, or misremembered by the hearers; their meaning depends
always on their connexion with other words and things; tiiey may signify differently
even according to the tone of voice, with which they are delivered; and sometimes
eilence itself is more expressive than any discourse. If the words be set dovirn in writ-
ing, it argues more deliberate intention; and it has been held that writing is an overt act
of treason; for scrihcre est agere. But even in this case, the bare words are not the trea-
son, but the deliberate act of writing them. And such writing, tliongh unpublished, has
in some arbitrary reigns convicted its author of treason." But Hawkins, {ch. 17. sects.
3H to 31).) reasons differently; amongst other things he observes, that to charge a man
with speaking treason, is uiiqucstionably actionable, which could not be, if no words
could amount to treason ; also, that as, in case of felony, he who by command or persua-
sion imiuceth another to commit felony, is an accessary in felony, so he who does the
same in treason is a piincipal traitor, (there being no accessaries m treason, but all being
pririci[):ils,) and yet such person doth not act but by words. And in another place (ch,
17. s. 4f).) -'neither does it apjx'ar to nu; that my Lord ("hief .lustiee Hiile was at all of
this opinion; for though in the hitler edition of his Trealisr of the Plens of the CroioUf
it is s:iid, that compassintr by bare words is not an overt act, &c. yet in tiie first edition,
published in the year 1()78, it is twice said, that it hath been adjudged that words are aa
overt act." Sec R. v. Lord George Gordon, Dougl. 5^0. 1 East, I'. C, 117.
HISTORIA PLACITORUM CORONA. 115
ments of treason given in the time of E. 4. viz. that of Walter Wal-
ker, dwelling at the sign of the crown in Cheapside, who told his httle
child if he would be quiet, he would make him heir of the crown :
the other of Thomas Burde/f,{s) who having a white buck in his
park, which in his absence was killed by E. 4. hunting there, wished
it, iiorns and all, in his belly that counselled the king to it; where-
as in truth none counselled him to it, but he did it of himself: for
these words both these were attaint of high treason, and executed:
thontrh Markha?n chief justice rather chose to leave his place, tlian
assent to this latter judgment. Vide indictment of treason for trea-
sonable words, P. 3 H. 4. Kot. 4. <§• 12. Walton's case and Southe's
case.(/)
Therefore tho this be regularly true, that words alone make not
treason or an overt-act, yet it hath these allays and exceptions.
(1.) That words may expound an overt-act to make good an in-
dictment of treason of compassing the king's death, which overt-act
possibly of itself may be inditferent and unapplicable to such an in-
tent ; and therefore in the indictment of treason they may be joined
with such an overt-act, to make the same applicable and expositive of
such a compassing, as may plainly appear by many of the precedents
there cited. (?/)
(2) That some words, that are expressly menacing the death or
destruction of the king, area sufficient overt-act to prove that
compassing of his death M 9 Car. B. R. Crohagan's case f 116]
in Croke,{x) who being an Irish priest, 7 Car. 1 at Lisbon
in Portugal used these words, ''^ I will kill the king (innuendo
dominum Carolum regem Jlnglicc) if I may come unto him^^^
and in Jiiig. 9. Caroli he came into England for the same pur-
pose.(;y) This was proved upon his trial by two witnesses, and for
that his traitorous intent and the imagination of his heart was de-
clared by these words, it was held high treason by the course of the
common law, and within the express words of the statute of 25 E. 3.
and accordingly he was convicted, and had judgment of high trea-
son; yet it is observable, that there was somewhat of an overt-act
joined with it, namely, his coming into England, whereby it seems to
be within the former consideration, namely, tho the coming into
England was an act indiflerent in itself, as to the point of treason-;
(s) See Rapin's history sub anno 1478. who mentions it in the same manner; but it
appears from the indictment in Cro. Car. 120. that he was indidted for calculating the
kinir's and prince's nativity, and declarinfj that they would not live long; and also .for
publishing seditious rhymes and ballads, although this was not treason, and was there-
tore made felony during queen Elizahetirs lite, by 23 Eliz. cap. % Co. P. C. p. 6.
(/) iMutli's (not South's) and Walton's case are Trin. 3 H. 4, coram. re<re rot. 4. and P.
3 //. 4. coram rei/e rot. 12. in Sperhauck's case, who was also convicted of treason for
scoitdalous svords.
(n-) ]a Pyne's case. (:t) Cro. Car. 332.
(V) 1 his case docs by no means prove, that words alone are a sufRciont overt-act, for
lier(-v;iMC not otily thrciitning words, but also an act done in order to put that threatiiing
in execution; so that, as our author admits, it comes more properly under the former
Jicad; the resolution therefore in Kelijng 13. that words are an overl-act, which is founded
on thii case, must fall to the ground.
VOL. I. — 14
116 HISTORIA PLACITORUM CORONA.
yet it being laid in the indictment, that he came to that purpose, and
that in a great measure expounded to be so by his minatory words,
the words coupled with the act of coming over make his coming over
to be probably for that purpose, and accordingly applicable to that
end.
To say that the king is a bastard, or that he hath no title to the
crown, is held high treason. M. 5 Jac. Yelvert. 197. BlanchJiower''s
case, 4* ibidem Hill. S Jac. Berisfurcfs case.(z)
P. 13 Jac. B. R.{a) John Owen alias Collins was indicted
(] 117 J of treason, for that he, intending the king's death, /also Sf
ma I iliose spake these words of the king: The king being
excommunicate by the pope may be lawfully deposed and killed by
any whatsoever, which killing is not murder; and being demanded
by Henri/ While, how he durst utter such a bloody and fearful con-
clusion, Owen answered, " The matter is not so heinous, as you sup-
pose, for the king being the less is concluded by the pope being the
greater: and it is all one as a malefactor being convicted by a tem-
poral judge is delivered to execution, so the king being convicted by
the pope may be lawfully slaughtered by any whatsoever, for this is
the execution of the supreme sentence of the pope, as the other is the
execution of the law :" to this indictment he pleaded not guilty;
and it was ruled to be high treason by Coke chief Justice and all the
Court ; and being found guilty he had judgment to be hanged, drawn
and quartered. (6) And here it was said by the king's attorney (c)
upon the evidence, and not denied by the court, 1. that the statute of
(25. E. 3, as to compassing the king's death was but an affirmance of
the common law, 2. That it is treason by the laws of all nations; and
therefore an embassador for compassing the king's death shall be
executed here for treason; but tor other treasons shall be remitted
into his own country to be tried. 3. That words of this nature spoken
defuturo have been adjudged high treason presently; and therefore
it was there said to be adjudged in the time of H. S. in the case of
the duke of Bucks, that these words were high treason, If the king
(?) This case is likewise reported Cro. Jac. 275. and 1 Buls. 147. but both the cases quoted
here by our autlior, were actions for scandalous words, and tlie single point in judgment
before the court was, whctlier the words were actionable, and even as to that Yelverton
and Croke in BcvUford^s case dilfcred from ti)c other judges; so tliat none of these cases .
prove, that bare words arc an overt-act of treason williin 2.') Ed. 3. indeed vvlicre any one
not only utters words declaring his own thoughts, but endeavours by promises of reward
or other arguments to persu:ide another to kill the king, or the like, this has been con-
str.ucd an overt-act of treason, because here is something besides the words, here is an
attempt to draw another into the design, and is as much an overt-act as an agreement or
a consultation how to effect it. Lr)rd Stafford's ease, Slate Tr. Vol. 111. p. 208. Charnock's
case, Slate Tr. Vol. l\ . p. 681. 2.Salk. G31.
{a) 1 Roll. Rip. l«o.
(ii) These words, tho very wicked and of a mischievous tendency, and therefor^ an
high misdemeanor, yet unless aecDMipanied with some circumstances to show that tliey
were made use otin order to persuade somebody to kill the king, cannot according to tlie
resolution in I'yne's case amount to an overt-act ofliigh treason, for they are not any act
at all, and besides might be said by .a bigoUed papist, in the height of his ignorant zeal,
•without intending or imagining the death of the king.
(c) Bacon.
HISTORIA PLACITORUM CORONA. 117
shntthl arrest him of hi^h treason^ he ivoiild stab him; (videca.se
dt duke Bucks, 13 H. 8. 11. b. 12. a. where there are other words
also ;)(fy) and in the case of another. If H. 8. will not take again
qxieen Catlierine as his wife, he shall not be king ;{e) and in
the case of Stanley, Temp. H. 7. That if Pierce Warbeck [ 118 ]
were the son ofJu. 4. he would take part with him against
H. 7.(/)
And note, that king James had been long excommunicated by the
pope, and that every Maunday Thursday the pope excommunicates
all Calvinists, <$'c. and all that have withdrawn their obedience from
the pope: Owen was executed accordingly, F'ide la{g) the whole
judgment and particulars and consequence thereof,
7. Those words, which being spoken will not make an overt-act
to make good an indictment of compassing the king's death; yet, if
they are reduced into writing by the delinquent either letters or
books, and published, (/6) will make an overt-act in the writer to
make good such an indictment, if the matters contained in them zm-
port such a compassing,{i)\\2'] Co. P. C p. 14.
Instances of this kmd are many in 4 Cur. Croke,ubi supra: but I
shall instance particularly only in IVilliams^s case, P. 11 Jac. B. R.ik)
{d) There was also somewhat of an overt-act joined with the words; for being told by
a monk, that he should be king-, and commanded to obtain the good will of the com-
nionaliy, he was accused of giving certain robes for that intent: this duke's case was
counted hard, and his fate is lamented by the reporter,
(c) This was the case of Elizabeth Barton, the holy maid o? Kent: the words as related
by lord Bacon in his history of Henry VII. p. 134. were these; " That if king Henry the
eighth did not take Catharine his wife again, he should be deprived of his crown, and
die the death of a dog." She and her accomplices were attainted of treason by a particular
act of parliament, riz. 25. H. 8. cap. 12. upon which lord Coke observes, Co. P. C. 14.
that they could not have been attainted of treason within 25 E. 3.
(/) Lord Bacon in his history of Henry VII. p. 134. reports, that the criminal words,
for which Stanley was accused, were these; ''That if he was sure, that the young man
{Perkin Warbeck) were king Edward's son, he would never bear arms against him."
Upon which the historian makes this observation; "This case seems somewhat an hard
case, both in respect of the conditional, and in respect of the other words, S^c." — But (says
he) "Some writers do put this out of doubt; for they say, tlmt Stanley did expressly pro-
mise to aid Perkin, and sent him some help of treasure." And it appears by the record of
Stanley's indictment quoted in Cro. Car. p. 123. that he was accused not only of words,
but of an express agreement and conspiracy to bring in Peter Warbeck and make him
king. Note, That the lord Bacon, whose history is here quoted, is tiie attorney general
mentioned in Owen's case,
is) 1 Rol. Rep. 185.
(rt) In Peacham's case quoted in Cro. Car. 125. an unpublished writing was admitted
in evidence as an overt-act of treason; the like in tlie case of Col. Sidney, State Ti . Vol.
WI. p. 710. but both those cases were unwarrantable; as to the first it does not appear
there was any judgment, for the book says it was against the opinion of many of tlie
judges, and the latter was resolved at a time of day, when the resolution of the judges,
in such an affair ought to be but little regarded ; that judgment was accordingly reversed
by act of parliament, 1 W. S^ M.[\\]
(i) As was Ticyn's case, Kelyns 22. for report says, that the people were exhorted by
that book to put the king to death. Slate. Tr. Vfil. 2. p. 524.
(k) This case (which seems a very hard one) is reported, 2 Rol. Rep, 88. and is
quoted, Cro. Car. 125. ,
[11] Hallam's Const. His. 1 vol. p. 409. Fost. 198.
[12] "But this is indefinitely expressed ; and the case of Williams, under James I.
which Hale cites in corroboration of this, will hardly be approved by any constitutional
lawyer." 3 Hallam, 213. note.
119 HISTORIA PLACITORUM CORONA.
JVilliams wrote a book, intitled Balaam's Ass.{l) in
[ 119 ] whicli there were many tliitigs reproachful and dangerous,
to the king, and among others, that the kins;, should die
anno domiiii 1621, and that the realm should he destroyed, because
it was anti-christian and the ubomincttion of desolation: this book
he inclosed and sealed up in a box and sent it to the king;(w) and
for this he was indicted and attainted and executed tor high treason,
vide Co. P. C. 14. concerning words, where it is said thus: '•'■But if
the same be set down in writijig by the delinquent himself, this is a
sufficient overt-act within this statute.'^ And the same law it is,
if it be set down in writing by any other by his command or direction.
8. If there be an assembling together to consider how they may
kill the king, this assembUng is an overt-act to make good an indict-,
ment of compassing the king's death. This was ./^r^en'* case,(n)
26 Eliz.n.nd accordingly it was ruled Decern. 14. Caroli at Newgate^
in the case of Tonge and other confederates. (o)
By my lord Coke's opinion, Co. P. C. 14. "A conspiracy to levy
■war is no treason by the statute of 25 E. 3. till war be levied ;"
and there have been several particular and temporary acts, that
make the conspiracy to levy war treason, as well as compassing the •
king's death. And therefore he saith, "That it hath been resolved,
35 Eliz. that conspiracy to levy war against the king shall rii3t be
said an overt-act, to serve an indictment for the compassing the
king's death, because the clauses concerning compassing of the
king's death, and that of levying war, are distinct clauses, and de-
clare distinct treasons; and thefefore the latter shall not be an overt-
act to serve the former, because this were to confound several classes
or membra dividentia of high treason."[13]
And yet in the same book,/?. 12. the case of the earls of
j^ 120 ] Essex and Southampto7i, 43 Eliz. are cited, which seem to
contradict that opinion ; the words are, "That the said earls
intended to go to the court where the queen was, and to have taken
her into their power, and to have removed divers of her council, and.
for that end did assemble a multitude of people; this being raised to the
end aforesaid was a sufficient overt-act for compassing the death of the
queen,'^ which seems to contradict what is elsewhere by him said.(/;)
(I) He wrote two books, one called Balaavi's Ass, and the other Speculum Regale.
{m) In thi.s case was first broached that famous doctrine, sccjfcere est agere. The
court went so far as to declare it to be their opinion, that if thi.s book had been found
in his study, it would liave been a sufficient evidence of the treason, for which lie was
indicted; but this case destroys its own authority by going too far, for they agreed
it to be a clear point, Ihut bare words might amount to treason; strange contradiction
of the statute of 25 Ed. 3.
(n) Anderson, pars. I. p. 104. (o) Krlyng 17. State Tr. Vol. 11. p. 474.
{p) I do not see how this contradicts what is said by lord Cuke, p. 14. for he-re was an
express design to put the person of the <pieen under a force ; niy it had proceeded farther
than a design, for there was a multitude actually assembled for that end. State Tr. Vol.
I. p. 190.
[13] lyord Hale was once himself of this opinion. In his Summarij of the Fleas of the
Crown, p. 13. he says, "Conspiring to levy war no overl-act, uuless levied, because it
relates to a distinct treason."
HISTORIA PLACITORUM CORONJ^.. 120
And he that shall read the proceeding against the duke of Norfulk
set forth at large by Camden Eliz. sub. anno \512. p. 170. <5' seqite/i-
iibus, will find, that not only the conspiring with a foreign prince to
invade this kingdom, and signifying it to him by letters, is an overt-
act to maintain an indictment for compassing the queen's death: but
tliat the duke's purpose to marry the queen of Scotland, who had
formerly laid claim to the crown of England, and signifying it by
letters, and all this done without the consent of the queen of England^
was held an overt-act to depose the queen of Eyigland, and to com-
pass her death ; for if the queen of Scots claimed the crown of En-
gland, he that married her, must be presumed to claim it also in her
right, which was not consistent with the safety of the queen of En-
gland, and her title to the crown ; and altho this extending of treason
(as to this point of marriage) by illation and consequence was hard \{q)
yet the duke was convict and attaint of treason generally upon
this indictment, tho there are likewise some other crimes charged in
the indictment.
I will therefore set down the resolutionsof the judges 1663. touch-
ing those that were assembled in Yorkshire at Farley Wood,[r) di-
vers of whom were after indicted, and attainted of higli treason for
compassing the death of the king : the resolution was in
these words, as I have transcribed it verbatim cut of a MS. [ 121 ~\
of my lord keeper Bridgman then chief justice of the C. B.
who was present at the conference, Fuit agree par les justices sur
conference touchant ceux, queux assemble eux in Farley Wood in
Yorkshire 1663, que sur indictment pur compassing mort le roy overt
fait poet estre layd in consulting a levyer guerre contre lui (que est
overt-act de soy mesnie) & actual assembling, & levying guerre: Et.
ou Co. P. C. 14. dit, " Qe conspiracy a levyer guerre nest treason,
tanquc soit levyed, & pur ceo nest overt-act, ou manifest proofe de
compassing mort le roy, car le parols sont, (de ceo) i. e. compassing
niort le roy, & ceo soit a oonfounder le several classes, ou membra
dividentia :" Uncor le ley est contra ; &: issint fuit resolve per touts
les justices <§• councel de roy in le case des regicides, T^enner, Tonge
<5* yane,{s) que sur indictment de compassing de mort le roy, con-
sulting a levyer guerre, ou actual assembhng de guerre fueront evi-
dence, & overt fails provant compassing mort le roy ; & ceo appeirt
in Co. P. C. 14. "Si subject conspire ove forein prince de invader
le realm, & prepare pur ceo per overt fait, ceo est sufficient overt-act
pur mort le roy : Et ibidem p. 13. Le count de Essex 8,- Soittk^ in-
tended daler al court, &daver prise lareigneen lour power, ^- remover
ascun de councel, & a ceo fine assembled multitude de people ; this
being raised for the end aforesaid fuet sufficient overt-act pur com-
passing de mort le roy," queux 2 cases sont expresse contrary al
primer.
(7) According: to lord Coke's understanding of the statute of 25 Ed. 3. it was not only
hard but illeg'al, for by that statute no one ouL'ht to be convicted by inferences or illations.
Coke, F. C. p. 1-2. "=
(r) Kelyug, 13. (s) Kclyng, 20, 21.
121 HISTORIA PLACITORUM CORONA.
Fait auxi agree, que si un overt-act soil lay en le enditement, &
le proof est dun outre overt-act de mesme le kinde, ou species de
treasorj, ceo est assets bone evidence.
I must confess, that I could never assent to. this last part of the
resohition : tho I know it was so practised in criminal cases in the
star-chamber, for I liave always thought, 1. That the overt-act is an
essential part of the indictment. 2. As it must be laid, so it must be
proved ;(/) for otherwise, if another act than what is laid should be
sufficient, the prisoner would never be provided to make his-
r 122 ]] defense. [14] 3. That more overt-acts than one may be laid
in an indictment, and then the proof of any of them so laid,
being in law sufficient overt-acts, maintains the indictment. 4. That
if any overt-act be sufficiently laid in the indictment, and proved, any
other overt-acts may be given in evidence to aggravate the crime
and render it more probable.
This resolution, as to the point of compassing the king's death,
being the latter and of great weight, and more than twice practised, (t/)
ought to out-weigh the opinion before cited, and with this agrees
the resolution of 13 Eliz. Dyer 298. b. in Dr. St or ie' s c?ise, who
conspired with a foreign prince to invade this realm; it was adjudged
an overt-act to make good an indictment of compassing the queen's
death. (a:) Vide Anderson's Rejiorls Placito 154. which was the
case of »/^;*fl(e;^ and Somerville and others, who conspired the death
of queen Elizabeth, resolved by all the justices, that a meeting
together of these accomplices to consult touching the manner of
^effecting it was an overt-act to prove it, as well as Somerville' s buy-
ing of a dagger actually to have executed it. Jlnderson's Rep. Pars,
l.^p. 104.
And yet this difference seems to me agreeable to law, and recon-
ciles in some measure both resolutions.
(<) Kelyng 8. is contra, however this point is put out of all doubt by 7 W. 3. cap. 3.
§ 8. whereby it is provided tliat no evidence shall be^iven of any overt-act, which is not
expressly laid in the indictment.
(m) But yet it does by no means follow from thence, that this resolution is right as to
this point any more than as to the other resolved at the same time, which yet our author
thinks to be wrong; were it a point of common law tlie repeated resolutions of the judges
is the only way to know what the law is; but where the question arises upon an act of
parliament, that is to be the rule for courts of justice to go by, of which they are to judge
according to tiieir own reason and understanding, and are not in such cases tied down
by former dctermin;itions any farther tlian the reasons or arguments thereof appear con-
clusive, for judicandum est legihus non excniplis. Co. P. C 6 in inargine. A bare con-
spiracy to levy war is certainly not treason, and was so adjudged in the case of Sir John
Friend; but if it appears upon evidence, that the design was to kill the king, or depose
him or imprison him, or put any force on him, and the levying war was only the way or
method made use of to ('ffcct that design, then it will be an overt-act of compassing the
death of the king: and this is the dislinclion taken by lord chief justice Holt in Sir John
Frimd's case, Statr. Tr. Vol. IV. p. 613, 614.
(:i) See 2 Vent. 315.
[14] The clause in the Constitution of the United States which says, that in all
criminal prosecutions, the accused siiall enjoy the riglit " to be informed of the nature
and cause of tiie accusation," soMires to him suclj information as will enable him to pre-
pare for his defence. 2 Burr's Trial, 424.
HISTORIA PLACITORUM CORONA. 122
An assembly to levy war against the king, either to depose or
restrain, or enforce him to any act, or to come to his presence to
remove his counsellors or ministers, or to fight against the king's
lieutenant or mihtary commissionate officers, is an overt-act
proving the compassing of the death of the king; for such [ 123 ]
a war istlirected against the very person of the king, and he,
that designs to fight against the king, cannot but know, at least, it
must hazard his life; such was the case of the earl of Essex and
some others. [15]
But if it be a levying of war against the king merely by interpre-
tation and construction of law, as that o{ Burt07i.{y) and others, to
pull down all enclosures, and that of the apprentices in London
lately, to pull down all bawdy-houses, (r) de quibiis infra, this seems
not to be an evidence of an overt-act to prove compassing the king's
death, when it is so disclosed upon the proof, or if it be so particu-
larly laid in the indictment ; though prima facie if it be barely laid
as a levying war against the king in the indictment, it is a good
overt-act to serve an indictment of compassing the king's death, till
upon evidence it shall be disclosed to be only to the purpose afore-
said, and so only an interpretative or constructive levying of war.
And Burton\s case 39 Eliz. seems to intimate, as much, because
(y) Co. P. C. 10. (2) Kel 70.
[15] It gradually became an established doctrine with lawyers, that a conspiracy to
levy war against the king's person, tliough not in itself a distinct treason, may be given
in evidence as an overt act in compassing his death. Great as the authorities may be on
which this depends, and reasonable as it surely is, that such offences should be brought
within the pale of high treason, yet I must confess, that this doctrine has ever appeared to
me utterly irreconcilable with any fair construction of the statute. It has indeed by some,
been chiefly confined to cases where the attempt meditated is directly against the kind's
person for the purpose of deposing him, or of compelling him, while under actual duress,
to a change of measures; and this was construed into a compassing of his death, since
any such violence must endanger his life, and because, as has been said, the prison and
graves of princes are not very distant. But it seems not very reasonable to found a
capital conviction on such a sententious remark, nor is it by any means true that a de-
sign against a king's lite is necessarily to be inferred from the attempt to get possession
of his person. So far indeed, is this from being a general rule, that in a multitude of
instances, especially during the minority or imbecility of a king, the purposes of the con-
spirators would be totally defeated by the death of the sovereign whose name they de-
signed to employ. But there is still less pretext for applying the same construction to
sciiemcs of insurrection, when the royal person is not directly the object of attack, and
when the circumstances indicate any hostile intentions towards his safety. This ample
extension of so ptnal a statute, was first given, if I am not mistaken, by the judges in
lo63, on occasion of a meeting by some persons at Farley Wood in YorksJiire, in order
lo concert measures for a rising. But it was afterwards confirmed in Harding''s case,
(~ vcnir. 317.) immediately after the revolution, and has been repeatedly laid down from
the bench in subsequent proceedings for treason, as well as in treatises of very great
authority. It has, therefore, all the weight ot established precedent; yet I question
whelhiT another instance can be found in our jurisprudence, of giving so large a con-
strurtion, not only to a penal, but to any other statute. Nor does it speak in favour of
this construction, that temporary laws have been enacted on various occasions, to render
a conspiracy to levy war treasonable ; for which purpose, according to the current doc-
trine the statute of Edward III., needed no sup|)lcmental provision. Such acts were
I)asscd uniler Uliznhclh, Charles II, Sj George III., each of them limited to the existing
rcign. 3 Hallavi's Cons, His. 2U7.
123 HISTORIA PLACITORUM CORONA.
they took him to be indictable only upon the statute of 13 Eliz. cap. 1.
for conspiring to levy war against the queen, whereas if this had
been an overt-act to prove the conipassi»)g of the death of the king,
the fact had been treason within 25 E. 3. as surely it would have
been, if he had conspired to have raised a war directly against the
king or his forces, and assembled people for that purpose, tho an
actual war had been caused by him.
But such a levying of war may in process of time rise into a direct
war against the king ; as if the king send his forces to suppress them
and they fight the king's forces; and then it may be an overt-act to
prove the compassing of the king's death. [16]
And thus far of compassing the king^s death.
Something I shall add touching the compassing of the death of the
queen, ox prince, wherein I shall first consider, what sliall be said the
qneen, or their eldest son within this act. 2. What a compassing of
their death.
1. A queen dowager, namely the queen after the deatli
\_ 124 ] of her husband, is not a queen within this act, for tho she
bear the title of queen, and hath many prerogatives answer-
ing the dignity of her person, yet she is not (his queen) or, as the
other parts of the act express it, [his companion) it must be the queen
consort, the king's wife, and during the marriage between them.
2. The queen divorced from the king a vinculo nialrimo?iii, dis for
cause of consanguinity, is not a queen within this act, tho the king
be living : this was the case of queen Katharine, who was first mar-
ried to prince ^/Irthnr, and by him, as was said, carnally known, and
after his death married to prince Henry (afterwards king Henry
VIII.,) by whom she had issue Mary (afterward queen of England,)
and afterwards after twenty years marriage was divorced causa,
affmitatis, which divorce was confirmed in the parliament 25 H. 8.
cap. 22.
This was also the case of his second wife queen Anne, who was
also divorced a vinculo, and that divorce confirmed by the statute of
2S H. 8. cap. 7. which nevertheless was again repealed in part by
the statute of 35 H. 8. cap. 1. and in effect wholly by the statute of
1 Eliz. cap. 3. and yet there is one clause observable in the act- of
28 //. 8. that treasons committed against queen Jlnne, or the lady
Elizabeth her daughter, mesne between the marriage and that
divorce were punishable, ahho the divorce made a nullity of the
marriage; and therefore there is a special clause to pardon all such
[Ifi] Mv.East (1 P. C. G3.) suys tliathc tlocs not know that flic point, that a mere con-
Btructive levying of war is evidence of conipassinfr the kin{r\s deatii, lias ever come
directly in judgment. It was not so considered in Cottoit^s case, Kel. 73. and tlie point
could notarise on the trials of Diunaret <.y I'mrliase, who were severally convicted upon
a constructive charge of ievyinir war only; there heijig' no count for coinpassing- the
queen's death. It must, however, be admitted, that the object of a j/rcat ri(jt or insor-
reetioti, eoiiiparativc'ly trivial in its ori^nn, may so far vary by its success, continuance,
or otiier circumstances, as to assume a di cided tone of resistance to the person of the king
and liis government, and so become an overt act of compassing his deatli. ■
HISTORIA PLACITORUM CORONA. 124
treasons, so that the relation of the divorce, and separation to dissolve
(he marriage ab initio, was not thought sufficient to discharge those
treasons, without a special pardon discharging tlie treasons commit-
ted against tliem.
]?ut we need not put the case of a divorce a mensd S^' thoro causa
arhilterii, because adultery by the king's wife is high treason in her,
and so the case of a divorce cannot well come in question, for she
must be executed for treason. P. 28 H. S. Spilmeai's Rep.{a) 33 H.
8. cap. 21.(6) Co. P. C.p. 9.[17]
• II. Ou lour fit z eigne 4' heir.
At common law compassing the death of any of the king's f 125"]
children, and declaring it by overt-act was taken to be trea-
son, Briton, ubi supra; but by this act it is restrained to the eldest
so?i and heir.
1. The eldest son and heir extends not to a collateral heir, tho
declared heir apparent to the crown, unless there be a special provi-
sion for that purpose by act of parliament: thus Roger Mortimer
11 ^.2. Richard duke of York 39 H. 6. John de la Poole tempore
R. 3. and Henry marquis of Exeter tempore H. 8. were declared
heirs apparent of the crown; yet compassing any of their deaths ia
the king's life time was not treason within this act. Co. P.C. 8, 9.
And therefore in that great agreement made in the parliament of
39 H. 6. when Richard duke of York made his claim to the crown,
and it was enacted, that H. 6. should hold the crown during his life,
and that Richard duke of York should succeed him, Rot. Pari. 39
H. 6. 71. 24. it is specially enacted, that if any person do compass or
imagine the death of the duke, and thereof be attaint by open act, it
shall be high treason; which had not been so, unless it had been
specially enacted.
2. The king takes wife, and by her hath issue two sons, the eldest
dies, the wife dies, he takes a second wife; this second son, though
he were once not eldest, and tho he be not lour eigne fitz, but only
the king's son, is eldest son within this statute.
3. King Edward III. had issue the Black Prince, who had issue
Richard of Burdeaux afterwards king Richard II. his eldest grand-
child, tho he were not, in the life of his father the Black PrincCy
the king's eldest son within this statute, yet his father being dead in
the liie of Edward III. it may be very considerable whether prince
Richard be the king's eldest son within this statute, and the com-
passing of his death be high treason; for he is heir apparent of the
crown, and his heirship cannot be devested by any after born child.
The duchy of Cornwall was settled upon the Black Prince
&r ipsius «S' hxredum suorum regum Anglias filiis prima- [ 126 ~\
senilis, altho the king's eldest daughter be not duchess
(a) In the case of queen Anne Bulen.
{l>) In the case of queen Katharine Howard,
[17] A wife de facto until a divorce, is a queen within this statute. But after a di-
rce, though it be only a mensa et thoro, she is not. Hob. 13. 3G. See 1 East, F. C. 64.
VOL. I. — 15
126 HISTORIA PLACITORUM CORONiE.
o{ Cormvall, because not ^lius, yet, (contrary to the opinion deli-
vered in the prince's case 8 Co. Rep. 30. a) H. 8. after the dearh of his
brother prince v/^r//iwr, and our late king Charles, after the death of
bis eldest brother prince Henry, were dukes of Cornwall in the life
of their fathers: the latter appears expressly by the statute of 21 Jac.
cap. 29. wherein it is so declared by judgment of parliament; and
Richard of Biirdeaux was also duke of Cornwall after the death of
his father the Black Prince, and comes in the catalogue of dukes of
Cornwall in the collection of Fincent and Mills of the nobility of
England; and had the revenues thereunto belonging, as appears
undeniably. Rot. Pari. 51 E. 3. n. 65.
But it seems it was not by virtue of that limitation in the grant to
the Black Prince, but by a new special creation; for Rot. Pari. 50
E. 3. n. 50. the common petition, that he might be created duke of
Cormvall, earl of Chester, and prince of Wales; the king declined
the doing of it at their request, as being a thing proper only for the
king to do his pleasure therein: the truth is, the king had done it
before the request made, viz. Rot. Cart. 47, 48 c^' 49 E. 3. n. 10. the
words of the charier are, '■^ Ex consilio Sc consensu prssla torn m, du-
cum, comituni 4' horonurn, ipsum Ricardum principem Walliee
ducem Cornubise, 8^- coniitem Cestria3 fecimus Sc creavirniis,''^ and
grants him the possessions thereunto belonging, which he accordingly
enjoyed: vide Rot. Pari. 51 E. 3. n. 9. and observe a certain estate
is limited by the patent of creation for life; or otherwise, it seems, it
was thought fit to leave it to the construction of law, whether he had
it purely by a new creation, or by the construction of the charter
11 E. 2. to the Black Prince.
This case therefore touching conspiring the death of such a prince,
as Richard of Burdeaux then was, tho it may be probable to be
treason within the intent of this act, is fittest to be first decided by
parliament according to the caution used in the statute of 25 E. 3.
3. If the king of England hath two daughters only, and no son,
the eldest daughter is not within tFie words or intent of the
[ 127 ] king^s eldest son within this clause, for a son may be after
born; but several statutes have made temporary pro-
visions iu this case; vide the statutes of 25 H. 8. cap. 22. 2Q M,
8. cap. 7.
It is true the implication of Co. P. C. p. 9. where it is said, "If
the heir apparent be collateral heir apparent, lie is not within this
statute, until it be declared by parliament," implies that the lineal
heir, male or female, is within this statute.
But the implication of the statute itself is against it, because this
act. almost in the same breath takes notice of the king's eldest
daughter upon anotlier rank of treason, namely defiling her; and it
is not safe to extend this act by construction.
The second daughter, living the first, is certainly not within this
law, because not immediately inheritable to the crown.
Yet by the statute of 25 //. 8. cap. 22. which was but temporary,
provision is made, that if any thing should be written or done to the
J
HISTORIA PLACITORUM CORONA. 127
peril, slander or disherison of any of the issues and heirs between,
him and queen Jntie, the same should be treason.
Thus far touching»lie persons of the queen or prince.
Now what shall be said a compassing of their death, or an
overt-act to prove the same: what shall be said a compassing of the
king's death, hath been at large declared, much whereof may be ap-
plied to the queen or prince, but not universally; for the king is
above the coercion of the law, tho his actions are not exempted
from the direction of the law in many cases; but the queen and
prince are subjects of the king, and subjects to the laws; whence
it comes to pass, that there are certain overt-acts manifesting com-
passing the king's death, which are specifical and appropriate to
the king and his sovereign power and royal dignity, which are not
applicable to the queen or prince.
If a man compass to imprison the king, tho it be colorably done
by process of law, it is a compassing of the king's death within this
act, as hath been shewn.
But if the queen or prince commit a misdemeanor of such a na-
ture, as is a contempt against the king's laws, to which im-
prisonment is proper, as in case of treason, felony, rescue, [128 ^
they may be imprisoned by process of law without danger
of treason: thus was the son of Henry IV. committed by Gascoign
chief justice for rescuing a prisoner from the bar; and several acts of
attainder of treason have passed in parliament against some queen-
consorts, as appears by 28 H. 8. cap. 7. 33 H. 8. cap. 21. against
queen Catharine Howard. Rot. Pari. 5 H. 5. n. 11.
Again, to compass to depose the king is treason, but to compass a
divorce between the king and queen by the king's commission by
due process of law was no treason, as appears in the process before
the archbishop of Canterbury, whereupon queen Catherine, and
afterwards queen Anne were divorced.
The compassing therefore of the death of the queen or prince,
which is treason within this act, is where a man without due process
of law expressly compasseth the wounding or death of them either
by force or poison.[18]
(18] The following^ are some of the instances, under the English law, as it is laid
down by the writers or decided by the cases, of what are deemed sufficient overt acts of
compassing the king's death. Every thing- wilfully or deliberately done or attempted,
whereby the king's life may be endangered, is an overt act of compassing his death.
Fast. l;)5. Killing the king is an overt act of compassing -liis death, and was so laid in
the case of the regicides of Charles I. Kel. 8. So, going armed for the purpose of kill-
ing the king, R. v. Som.err.ille et al; 1 And. 104; providing arms, ammunition, poison,
or the like, lor the purpose of killing the king, 3 Ins. 12; conspirators meeting and con-
sulting of the means of killing the iiing, Fosl. 195, R. v. Vane, Kel. 15, R. v. Ton g el al,
id. 1 / ; or of deposing him, or of usurping the powers of government, R. v. Hardy et al,
I East, P. V. GO; or resolving to do it, R. v. Rookwood, 4 St. Tr. 661, R. v. Charnnck,
Iff. SG"-, Salk. G31 ; acting as counsel against the king, in order to take away his life,
R. V. (Jokr, Kel. 12, R. v. Harrison, 2 St. Tr. 314. So, other species of high treason,
which are distinct heads of treason in themselves, may be laid as overt acts of compass-
ing the death of the king; thus levying war directly against the king, Fost. 195. 210.
4i'4, Kel. .,1,3 Jnst. 12; or a conspiracy to levy war directly against the king for the
purpose of detiironing him, or obliging him to change his measures, or the like, Fosf.
128 HISTORIA PLACITORUM CORONA.
And thus much for treason in compassing the death of the king,
queen, or prince; and because the next treason declared, namely the
violation of the king's wife, the king's eldest Sten's wife, the king's
eldest daughter, hath not much to be said concerning it, I shall close
this chapter with it.
1. The violating; the Icing's companion, that is the king's wife,
the queen consort, her husband being now living; this is liigh trea-
son, and so it is in her if she consent. P. 28 H. 8. 33 H. 8. cap. 21.
Co. P. C. p. 9.
2. The wife of the king's eldest son and heir, a princess consort,
and during the coverture between them; and if she consent, it is
treason in her.
3. The king^s eldest daughter not married: this extends to a
second daughter, the eldest being dead; for she is now eldest, and,
for want of issue male, inheritable to the crown; but at common law
this treason extended to any of the daughters. Briton, cap. 22. §. 11.
It extends to an eldest daughter, tho there be sons ; and qudere, whe-
ther to an eldest daughter, that hath been married, and is now a
widow, nient marry may be construed either way; or if it
[^ 129 ] doth, yet whether it extends to an eldest daughter, that is a
widow, and hath children by her husband; the words of the
old books are avant ceo, qel est marry: it seems, that if the eldest
daughter hath been once married, she is not within this law, because
of tiie words nient marry, tho the reason may possibly be the same ;
and it seems, tho there be sons, yet the violating of the king's eldest
daughter, being within the express words of the law, the violation of
her is within this law, because within the words; and yet the viola-
tion of the wife of the king's second son is not within this statute,
yet he and his issue is inheritable to the crown before the eldest
daughter ; in this case therefore the words of the law are to govern.
Altho it should seem probable, that the eldest son of the prince
after the death of his father may be the king's eldest son within this
act, as is before observed ; yet the daughter of the king's eldest
daughter, after her mother's death, seems not an eldest daughter
197. 211, R. V. Friend, 4 Si. Tr. 599, R. v. Darrell, 10 Mod. 321, R. v. Layer, 4 St. Tr.
229. 332. R. v. Campion et al. Saville, 3, R. v. Lord Russel, 3 St. Tr. 705. R. v. Sydney,
3 St. Tr. 807. R. v. Cook, 4 St. Tr. 737. (But not a conspiracy to eftect a general rising
for the purpose of throwinjSf down all enclosures, &c. or of any otlier species of construc-
tive levying of war. Fast, 213, per Holt, C. J., Holt, 682. 10 Mod. 322.) Adhering to the
king's enemies, Fast. li)(), R v. Harding, 2 Vcntr. 315, R. v. Liird Preston, 4 St. Tr.
410, R. V. Stoup, 6 7'. R. 527; inciting foreigners to invade the realm. Fost. 196. R. v.
Parkyns, 4 St. Tr. 627. Writings which import a compassing of the king's death, are
suflicient overt acts of this species of treason, if pubhshed, Fost. 198, 1 Hawk. c. 17, s. 31 ;
as for instance, writings inciting persons to kill the king. R. v. Tioyn, Kel. 22. Sqe
I'yne^s case, Cro. Car. 1 17. So, words of advice or persuasion arc sutficient overt acts
of this species of treason, if they advise or persuade to an act which would of itself (if
comniitted) be a sufficient overt act. Fost. 195. R. v. Charnock, 4 iS7. Tr. 562. Salk. 631.
So, words may be laid in the indictment, to cx[)lain an act; as for instance, an act seem-
ingly innocent in itself^ may he shown to be an act of treason, by its connexion with
words spoken by the party at the time. R. v. Crohugan, Cro. Car. 332. R. v. Lee, 7 St.
Tr. 43.
HISTORIA PLACITORUM CORONA. 129
within this act, her grandfather being Hving, for the grandson, who
is heir apparent of the crown, is of more consideration than the
daughter of a daughter, who cannot be heir apparent, because a son
may be born.
Quxre, Whether violating the eldest daughter, after the death of
the king her father, be treason within this act, where a son succeeds
to the crown : it seems not, for the relatioti is ceased.(c)
And thus far for the two first branches of high treason.
CHAPTER XIV. [ 130 ]
CONCERNING LEVYING OF WAR AGAINST THE KING.
The JKs ^ladii, both military and civil, is one of the j^ira mojes-
tatisy and therefore no man can levy war within this kingdom with-
out the king's commission. Co. P. C. p. 9. See the statute, or
rather proclamation(tf) de defensione portandi armo, wherein it is
recited by the king, that the prelates, earls, barons, and commonalty
illueque asembles en evisement sur cest besoigne nous eiont dit, que
a nous appent (§• de nous par nostre royal seignorie defendre^fort-
ment des armes, 4* de tout\iulre force contre nostre pees, a touts
lesfoitz, que nous plerra ;{b) and hence it is in all declarations and
indictments touching things done against the peace, the conclusion
goes contra pacem domini regis.
It is true, there have been great disputes in this kingdom touching
the disposition of the militia o{ \h\s kingdom, which are now all set-
tled, and declared to be the right of the crown by the statutes of 13
Car. 2. cap. 6, and 13 & 14 Car. 2. cap. 3.[1]
•(c) She is no longer leigne file le roy. It having been before observed that a queen
regent is a king within this act, it follows of course that the eldest son and eldest daugh-
ter of such a queen is likewise within it. Co. P. C. p. 8.
(a) In the seventh year of Edward I.
{b) This statute is only a proof of the king's power to issue his proclamation against
coming armed to the parliament. Vide Rot. Pari. 25 E. 3. pars. I. n. 58. dorso.
[1] By the Constitution of the United States, Art. 1, Sect. 8, Congress shall have power
to provide for the calling forth the militia to execute the laws of the Union, suppress in-
surrections, and repel invasions : To provide for organizing, arming, and disciplining
the mihtia, and for governing such part of them as may be employed in the service of
the Liiited States ; reserving to the States respectively, the appointment of the officers,
and the authority of training the militia according to the discipline prescribed by Con-
gress. Accordingly the following acts of Congress for the establishment of an uniform
system for the government of the militia, have been passed: An Act more eftectualiy to
provide for the national defence, by establishing an uniform militia throughout the United
States; May 8, 1792, ch. 33. An Act providing arms for the militia throughout the
United States, July G, 1798, ch. 65. An Act in addition to an Act entitled, "An Act
more effectually to provide for the national defence, by establishing an uniform militia
throughout the United Slates,'' March 2, 1803, eh. 15. An Act more effectually to pro-
vivle for the organizing of the mihtia of the Districtof Columbia, March 3, 1803, ch. 28.
An Act establishing rules and articles for the government of the armies of the United
130 HISTORIA PLACITORUM CORONiE.
Now as to this clause of high treason, Ou si home levy guerre
coiintre. noslre seigneur le roy en son realme.
To make a treason within this clause of this statute there must be
three things concurring,
I. It must be a levying of war.
II. It must be a levying of war against the king.
III. It must be a levying of war against the king in his realm.
I. For the first of these, the act saith levy guerre; what shall be
said a levying of war, is in truth a question of fact, and re-
\_ 131 3 quires many circumstances to give it. that denomination,
which may be difficult to enumerate or to define ; and com-
monly is expressed by the words more guerrino arraiati.
As where people are assembled in great numbers armed with
weapons offensive, or weapons of war, if tliey march thus armed in
a body, if they have chosen commanders or officers, if they march cum
vexillis explicatis or with drums or trumpets, and the like ; whether
the greatness of their numbers, and their continuance together doing
these acts may not amount to more guerrino arraiati, may be con-
siderable. •
But a bare conspiracy or consultations of persons to levy a war,
and to provide weapons for that purpose ; this, tho it may in some
eases amount to an overt-act of compassing the king's death, yet it is
not a levying of war within this clause of this statute ; and therefore
there have been many temporary acts of parliament to make such a
conspiracy to levy war treason during the life of the prince, as 13
Eliz. cap. 1. 13 Car. 2, cap. 1. and others. Vide accordant Co.
P. c.p. 10.
Again, the actual assembling of many rioters in great numbers to
do unlawful acts if it be not modo guerrino or in specie belli, as if
they have no military arms, nor march or continue together in the
posture of war, may make a great riot, yet doth not always amount
to a levying of war : vide statute 3 4' 4 J5?. 6. cap. 5. 1 Mar. cap.
12.(C)[2J
(c) See also 1 Geo. 1 cap. 5.
States, April 10, 1806, ch. 20. An Act in addition to the Act entitled, "An Act to pro-
vide for calling forth the militia to execute tlie laws of the Union, suppress insurrections,
and to re])eal the Act now in force for these purposes," April 18, 1814, ch, 82. An Act
coticernin<r field otHcers of the militia, April 20, 1816, ch. 64. An Act to establish an
uniform mode of discipiiiie and field exercise for the militia of the United States, May 12,
1820, ch. 'J6. An Act to reduce and fix the military peace establishment of the United.
Slates, March 2, 1821, ch. 12, sect. 14. See 3 Story on Cons. 81.
[2] " It is obvious that Lord Hale supposed an assemblage of men in force, in a mili-
tary posture, to be necessary to constitute the fact of levying' war. 'I'he id^^a he appears
to suggest, that tiie apparatus of war is necessary, has been very justly coVnbated by an
able judge, (Mr. Justice Foster ; see Disc. 208.) who has written a valuable treatise on
the subject of treason; but it is not recollected tiiat his position, that the assembly
should bo in a posture of war for any treasonable attempt, has ever been denied." per
Marshall, C. J. 2 Burr's Tr. 434. And again, (p. 432.) " If the party be in a condition
to execute the proi)osed treason, without the usual implements of war, I can perceive no
reason for rc(}uiring those implements in order to constitute the crime."
Alluding to the dillerence which Lord Hale makes (pp. 13L 141. 150 to 153.) between
HISTORIA PLACITORUM CORONA. 131
IT. As to the second; the statute saith, {against its) to make it
therefore treason, it must be a levying of war against the king:
otherwise, the it be more g^ierrino, and a levying of war, it is
not treason. 1. Therefore if it be upon a private qnarrel, as many
times it happened between lords marchers, tho it be vexillis expli-
catis, it seems no levying of war against the king. 2. If it be only
upon a private and particular design, as to pull down the inclosures
of such a particular common, it is no levying of war against the king.
Co. P. C.p. 9. 3. But a war levied against the king is of two sorts,
1. Expressly and directly, as raising war against the king or his
general and forces, or to surprise or injure the king's [)er-
son, or to imprison him, or to go to his presence to enforce [ 132 J
him (0 remove any of his ministers or counsellors, and the
like. 2. Interpretatively and constructively, as when a war is levied
to throw down inclosures generally, or to inhanse servants wages, or
to alter religion established by law; and many instances of like na-
ture might be given ; this hath been resolved to be a war against the
king, and treason within this clause; and the conspiring to levy such
a war is treason, tho not within the act of 25 E. 3. yet by divers
temporary acts of parliament, as 13 Eliz. during the queen's life, 13
Car. 2. during our king's life. Co. P. C. p. 10. [3]
The first resolution, that I find of this interpretative levying of war,
is a resolution cited by my lord Coke, P. C. p. 10. in the time of
Henry VIII. for inhansing servants wages ; and the next in time was
\h?\,\. o( Burton, 39 Eliz. Co. P. C. p. \0.{d) for raising an armed
force to pull down inclosures generally : this is now settled by these
instances, and some of the like kind liereafter mentioned ; the pro-
ceeding against Burton and his companions was not upon the statute
of 25 E. 3. which required, that in new cases the parliament should
be first consulted; but upon the statute of 13 Eliz. for conspiring to
{d) Poph. 122. 2. Wilson, 363.
insurrections which carry with them the appearance of an army and those assemblies
which have been drawn together without any of the show or apparatus of war, Foster
says, ''I do not think any great stress can be laid on tiiut distinction. It is true that in
case oflevying war, the mdictments generally charge tluit the defendants were armed
and arrayed in a warlike manner; and where the case would admit of it, the otiier cir-
cumstances of swords, guns, drums, colours, &c. have been added. But I think the
merits of the case have never turned singly on any of these circumstances. In the case
o\ Dumaree S^ Purchase, (8 St. Tr. 218. 267.) there was nothing given in evidence of the
usual pageantry of war; no military weapons, no banners, no drums, nor any regular
consultation previous to tiie rising. And yet the want of these circumstances weighed
nothmg will: the Court, though the prisoner's counsel insisted much on that matter.
The number of the insurgents supplied the want of military weapons; and they were
provided with axes, crow.«, and other tools of the like ni^ure proper for the mischief they
intended to effect. Furor arma ministrat'" It was tlie opinion of the Court iti the case
oi Fries, p. 197, that the legal guilt of levying war might be incurred without the use
of military weapons or military array.
Mr. East thinks that Sir Matthew Hulo did not mean to carry his observations further
than concerned cases of constructive levying of war. 1 F. C. 67. Judae Tucker is
strongly in fnvoiir of the doctrine that warlike array and arms are essential to complete
the crime. 4 Tucker's Bl. Apdx. p. 18. and Mr. LuJers, in his Tract on Constructive
Treason, pp. 52 & 69, is of tlie same opinion.
[o] .\iid 36 Geo. 3. c. 7, during that king's life.
132 HISTORY PLACITORUM CORONA.
levy war, which hath not that clause of consulting the parliament in
new cases, and therefore seems to leave a latitude to the judges to
make construction greater, than that was left by the statute of 25 E. 3.
These resolutions being made and settled we must acquiesce in
Ihem ; but in my opinion, if new cases happened for the future, that
have not an express resolution in point, nor are expressly within the
words of 25 E. 3. tho they may seem to have a parity of reason, it is
the safest way, and most agreeable to the wisdom of the great act of
25 E. 3. first to consult the parliament and have their declaration,
and to be very wary in multiplying constructive and interpretative
treasons, for we know not where it will end.
But particular instances will best illustrate this whole learning,
which I shall subjoin, tho somewhat promiscuously, as they occur to
my memory.
A conspiring or compassing to levy war is not a levying
r 133 ] war within this act, unless the war be levied; this appears,
Co. P. C. p. 9. and also by those many acts of parliament
above-mentioned, which were but temporary and limited to continue
during the life of the king or queen, whereby it is specially enacted,
that such compassing to levy war shall be treason ; which needed
not have been, if it had been treason by the statute of 25 E. 3.
Vide 1 4- 2 P. <5' M. cajJ. 10. 1 Eliz. cap. 5. 13 Eliz. cup. 1. 13
Car'. 2. cap. 1.
And therefore in the case of Robert Burton and others, that con-
spired to assemble themselves and pull down inclosures, and to gain
arms at the lord Norris^s house, and to arm themselves for that pur-
pose, Co. P. C. 10. they iwere indicted and attainted purely upon the
statute of 13 Eliz. cap. 1. whereby conspiring to levy war is made
treason.
But if divers conspire to levy war, and some of them actually levy
it, this is high treason in all the conspirators, because in treason all
are principals, and here is a war levied. (e)
If divers persons levy a force of multitude of men to pull down a
particular inclosure, this is not a levying of war within this statute,
but a great riot; but if they levy war to pull down all inclosures, or
to expulse strangers, or to remove counsellors, or against any statute,
as namely the statute of Labourers, or for inhansing salaries and
wages, this is a levying war against the king, because it is generally
against the king's laws, and the otfenders take upon them the refor-
mation, which subjects by gathering power ought not to do. [4] Co.
P. C. p. 9, 10. Vide the act >3 & 4 ^. 6. cap. 5. " If any to the number
of twelve shall intend, go about, practise, or put in ure by force to
alter the religion establiyhed by law, or any other laws, and depart
(e) Co. P. C.p. d. Kelyng.p. 19.
[4] Post. 219, bamaree's case, 8 St. Tr. 218. Purchase's case, id. 267. 4 Bl. C'om.'&i.
Mr. Luders iirfres that none of tlicso acts can be treason by a fair construction of tiie
Slat. 25 Edw. 3. p. &2 el seq.
HISTORIA PLACITORUM CORONA. 133
not within an hour after proclamation, or after that shall wilfully
in a forcible manner attempt to put in ure the things above specified,
then it is high treason."
If men levy war to break prisons to deliver one or more particular
persons out of prison, wherein they are lawfully imprisoned,
unless such as are imprisoned for treason; this upon advice [ 134 ]
of the judges upon a special verdict found at the Old Bailey,
was ruled not to be high treason, but only a great riot 1668, but if it
were to break prisons, or deliver persons generally out of prison, this
is treason, Co. P. C. p. 9.
There was a special verdict found at the Old Bailey, anno 20 Car.
II.,(/) that ^. B. and C. with divers persons to the number of an
hundred assembled themselves rnodo gnerrino to pull down bawdy-
houses, and that they marched with a flag upon a staff, and weapons,
and pulled down certain houses in prosecution of their conspiracy:
this by all the judges assembled, except one, (o-) was ruled to be levy-
ing of war, and so high treason within this statute ; and accordingly
they were executed.
But the reason that made the doubt to him that doubted it, was
1. Because it seemed but an unruly company of apprentices, among
whom that custom of pulling down bawdy-houses had long obtained,
and therefore was usually repressed by officers, and not punished as
traitors. 2. Because the finding to pull down bawdy-houses might
reasonably be intended two or three particular bawdy-houses, and the
indefinite expression should not in materia odioscl be construed either
universally or generally. And 3. Because the statute of 1 Mar. cap.
12. though now discontinued makes assemblies of above twelve per-
sons and of as high a nature only felony, and that not without a con-
tinuance together an hour after proclamation made; as namely an
assembly to pull down bawdy-houses, burn mills or bays, or to abate
the rents of any manors, lands or tenements, or the price of victuals,
corn or grain ; or if any person shall ring a bell, beat a drum, or sound
a trumpet, and thereby raise above the muiiber of twelve for the pur-
poses aforesaid, which are raised accordingly and do the fact, and
dissolve not within an hour after proclamation, or that shall convey
money, harness, artillery, it is enacted to be felony ; and if any above
the number of' two, and under twelve, do practise with force of
arms unlawfully, and of their own authority to kill any of the queen's
subjects, to dig up pales, throw down inclosures of parks,
pull down any house, mill, or burn any stack of corn, or [ 135 1
abate rents of manors, lands or tenements, or price of corn
or victual, and do not depart within an hour. after proclamation,
and continue to attempt to do or put in ure any of the things above-
mentioned, they are to have a year's imprisonment.
And the statute of 3 & 4 E. 6. cap. 5. is to the same purpose, only
if the number of forty, or above, come together to do such acts as
(/) V\de Kehpg, p. 70. ^-c.
ig) Tliis was our author himself. Vide Kelyng, 75.
VOL. I. — 16
135 HISTORIA PLACITORUM CORONA.
before, or any other felonious, rebellious, or traiterous acts, and con-
tinue together two hours, it is made high treason. (A)
But yet the greater opinion obtained, as it was fit; and these ap-
prentices had judgment, and some of them were executed, as for high
treason.
Yet this use may be made of those statutes : 1. That there may be
several riots of a great and notorious nature, which yet amount not to
high treason. 2. But again, those acts and attempts possibly might
not be general, but might be directed only to some particular instances,
as for the purpose not to pulldown all houses or mills, but some spe-
cial ones, wliich they thought offensive to them; nor to abate the
rents of all manors, but of some particular manor, whereof they were
tenants; nor to make a general abatement of the prices of victuals or
corn, but in some particular market, or within some precinct; and so
crosseth not the general learning before given of constructive treason.
3. It seems by that act also, they did not take the bare assembly to
that intent to be a sufficient overt-act of levying of war; that was
but an attempt and putting in ure, unless they had actually begun
the execution of that intention, going aboiU, practising or putting in
ure; for this act puts a difference between the same and the doing
thereof.
In the parliament of 20 E. 1. now printed in Mr. Ryley.p. 77. it
appears there arose a private quarrel between the earls of Gloucester
and Hereford, two great lords marchers; and hereupon divers of the
earl of Gloucester's party with his consent cum multitudine
r 136 1 tam equiium quam peditum exierunt de terra ipsius comitis
de Morgannon cum vexillo de armis ipsius comitis expli-
cato versus terram comitis Heref de Brecknock, & ingressi fuerunt
terram illam per spatium duarum leucarum, & iilam deprsedati fue-
runt, & bona ilia depra3data usque in terram dicti comitis Glocestrix
adduxerunt, and killed many, and burnt houses and committed divers
outrages; and the like was done by the earl of Hereford and his
party upon the earl of Gloucester: they endeavoured to excuse them-
selves by certain customs between the lords marchers; by the judg-
ment of the lords in parliament their royal franchise' were seised as
forfeited during their lives, and they committed to prison, till ran-
somed at the king's pleasure.
Altho here was really a war levied between these two earls, yet
in as much as it was upon a private quarrel between them, it was
only a great riot and contempt, and no levying of war against the
king; and so neither at common law, nor within. the statute o{ 25 E.
3. if it had been then made, was it high treason.
It appears by IValsingham sub anno 1403. a great rebellion was
raised against Henry W. by Henry Percy son of the earl o[ North-
timberland and others: the earl gathered a great force, and actually
took part with neither, but marched with his force, as some thought,
towards his son, and, as others thought, towards the kiugpro redinte-
(/t) See also 1 Geo. I. cap. 5.
HISTORIA PLACITORUM COROx\.^. 136
grando pacts negolio; he was hindered in his march by the earl of
fFesfmorehind and returned to his house at fVerkworth; the king
had the victory; the earl petitioned the king; the whole fact was
examined in parliament, Rot. Pari. 5 H. 4. n. 12. The king de-
manded the opinion of the judges and his counsel touching it: the
lords protest the judgment belongs in this case to them; the lords by
the king's command take the business into examination, and upon
view of the statute of 25 E. 3. and the statute of Liveries " Adjuge-
rent, qe ceo, qe fuit fait par le counte, nest pas treason, ne felony, raes
trespass tantsolement, pur quel trespass le dit counte deust faire fine
& ransom a volunte du roy ;" but Henry the son was attaint of
treason.
It appears not what the reason of that judgment was,
whether they thought it only a compassing to levy war, and P 137 ~\
no war actually levied by him, because not actually joined
with his son; or whether they thought his intention was only to
come to the king to mediate peace, and not to levy a war, nor to do
him any bodily harm; that it was indeed an offense in him to raise
an army without the king's commission, but not an offense, of high
treason, because it did not appear that he raised arms to oppose the
king, but possibly to assist him; but whatever was the reason of it,
it was a very mild and gentle judgment, for the earl was doubtful of
a more severe judgment : no?«, he returns thanks to the lords and
commons de lour bone &)- entyre coers a lui monslre, and thanks the
king for liis grace.-
The clause in the statute of 25 E. 3. If any man ride armed
covertly or secretly with men of arms against any other to slay, rob,
or take him, or to detain him, till he hath made fine or ransom, or
have his deliverance, it is not in the mind of the king or his council,
that in such case it shall be judged treason, but shall be judged
»felony or trespass according to the laws of the land of old times used,
and according as the case requireth; and if in such case or-other
like(«) before this time any judges have judged treason, and for this
cause the lands and tenements have come to the king's hands as for-
feited, the chief lords of the fee shall have the escheat.
This declares the law, that a riding armed with men of arms upon
a private quarrel or design against a common person is not a levying
of war against the king ;(/t) and the especial reason of the express
(i) Vide simile H. 26. E. 3. coram re.ge. Rot. 30. Rex. Hale.
This case was in the county of Essex, and was no more than this; Sir John Fitzwau-
ter and IVilliam Baltrip, his steward, <SfC. were presented by juries of divers liundreds for
taking' men by force, and detaining them till they paid fines for their ransom, for exacting'
and extorting money from others, and for several great and enormous riots, misdemeanors
and trespasses in the ceunty of Essex, attractando sibi regalem pofestalem, upon which.
Sit John Fi<2ica«ter surrendered himself, and was committed to the Tower oi' London, and
Baltrip was outlawed, who afterwards pleaded the king's pardon pro feloniis, conspira-
tiOTie, manutcnenlia Sf transsressionibus prcedictis, necnon pro iitlagariis occasione pramis-
sorum in ipsum promulgalis, upon which he was discharged sine die.
(k) Co. P. C. p.iO.
138 HISTORIA PLACITORUM CORONA.
adding of this clause seems to be in respect of that judgment of trea-
son given against Sir Johii Gerberge, Trin. 21, E. 3. Hot. 23. Rex.
and at large before mentioned, chirp. 11. which judgment is in etfect
repealed by this act.
It appears by Sir F. Moore's Rep. n. 849. (/) the earl of Essex was
arraigned and condemned for high treason before the lord high
steward, whereupon it was resolved by the justices, 1. That when
the queen sent the lord keeper of the great seal(m) to him, command-
ing him to dismiss the armed persons in his house and to come to her,
and he refused to come, and continued the arms and armed persons
in his house, that was treason. 2. That when he went with a troop
of captains and others from his house in the city of London, and
there prayed aid of the citizens in defense of his life, and to go with
him to the queen's court to bring him into the queen's presence with
a strong hand, so that he might be powerful enough to remove cer-
tain of his enemies, that were attendant on the queen, this was high
treason, because it tends to a force to be done upon the queen, and a
restraint of her in her house; and the fact in London was actual
rebellion, tho he intended no hurt to the person of the queen. 3. That
the adherence of the earl of Southampton to the earl of Essex in
London, tho he did not know of any other purpose than of a private
quarrel, which the earl oil Essex had against certain servants of the
queen, was treason in him, because it was a rebelhon in the earl of
Essex. 4. That all they, that went with the earl of Essex from Essex-
house to London, whether they knew of his intent or not, were
traitors, whether they departed upon the proclamation or not ; but
those, that suddenly adhered to him in London, and departed upon
the proclamation made, were within the proclamation to be par-
doned : there were other points resolved touching the manner of his
trial, whereof hereafter.
The whole history of Essex his treason and the proceeding there-
upon is set forth at large by Camden anno 44 Eliz. p. 604. <^' seqnen-
iibus, wherein the charge of his indictment appears to be,
£139] that he and his accomplices had conspired to deprive the
queen of her crown and life, having consulted to surprize
the queen in the court ; and that they had broken out into open re-
bellion by imprisoning the counsellors of the realm, by stirring up the
Londoners to rebellion by tales and fictions, by assaulting the queen's
faithful subjects in the city, and defending the house against the
queen's forces; so that the great part of the indictment was compass-
ing the queen's death, and the rest of the charge were the overt-acts,
which was treason within the statute of 25 E. 3. with which my
lord Coke agrees, P. C. p. 12.
If divers persons levy war against the king, and others bring them
relief of victuals /?ro thnore mortis, c^* recesserunt quam citd potue-
runt, this was adjudged not to be a levying of war, because pro
timore mortis; quvere, if the same law be in case of marching with
(Z) p. 620. (m) And others of her council.
HISTORIA PLACITORUM CORONA. 139
them in their company for fear of death. [5] Co. P. C.p. 10. vide
Slip. crrp. 8. Mich. 2\' E. 3 Rot. 101. Line, coram rege. lUi, qui
£oacti fnerunt ad denarios recipiendos & similiter coacti juravernnt,
dimittuntur per curiam per manncaptionem, quia sic in personis ipso-
rnm nihil mah reperitur, in case of a great riot, not unlike a levying
of war, for which they were indicted of treason.
Rot. Par. 17 R.2. n. 20. upon the complaint of the diikes of ^9giii-
tain and Gloucester, shewing that Thomas Talbot and others his
adherents by confederacy between them fauxment conspirerent pur
tuer les dits'ducs uncles le roy & autres persones grants de realme, &
pur accomplyer le malice susdit le dit Thomas & les autres mistrent
tout lour poyar, come notoirement est conus, & le dit Thomas ad en
grand party confesse, en anietuisment des estats & de loys de vostre
realme, & sur ceo firent divers gents lever armes, & arrayes a feire
de guerre en assembles & congregations a tres grant & liorrible num-
ber en divers parties en les countie de Cestre, and pray that it may
be declared in this parliament the nature, pain and judgment of this
otfense: the conclusion whereof was thus:
" Est avys au roy & a les seigniors de cest parlement en droit de
mesne la bille touchant Thomas Talbot, que la matter contenus en
la dite bill est overt & haut treason, & touche la person du
roy & tout son realme, & pur treason le roy & touts les seig- [^ 140 ~\
neurs snsdits adjuggent & declarant ;" and thereupon writs
of proclamation for his appearance in the king's bench are ordered
to issue for his appearance in one month, or otherwise to be attaint
of treason :(?i) vide Pas. 17 R. 2 B. R. Rot. 16. Rea-. Writs of pro-
clamation issued accordingly to the sheritfs of Yorkshire and Derby-
shire, and the sheriffs returned non est inventus; Talbot afterwards
came and rendered himself, and was committed to the Tower, and
afterwards a Supersedeas came for his enlargement.(o)
But this declaration being only by the king and house of lords is
not a conclusive or a sufficient declaration of treason according to the
purview of this statute, but yet it was a real levying of war against
the king, because done more guerrino and by people arrayed de fet
de guerre, as in Bensted^s case hereafter mentioned; but had it been
a bare conspiracy, it had not been treason, as appears by the special
statute of 3 H. 7. cap. 14. whereby a conspiracy to kill the king
(n) And all persons, that shall receive the said Sir Thomas Talbot within the realm
of England, after the said month elapsed from the time of the said proclamation, are
declared guilty of high treason upon conviction of such harbouring or receiving.
(o) The Supersedeas was not expressly for his enlargement, Sed quod cuicunq : proces-
sui versus ipsum Thomam Talbot ex causis pradictis ulterius faciendo supersedeanl, quo-
ousque aliud a rege inde habuerint in mandutis.
[5] It seems that it would. But the fear of having houses burnt or goods spoiled, is
no excuse in the eye of the law for joining and marching with rebels. The only force
that doth excuse, is a force upon the person, and present fear of death ; and this force
and fear must continue all the time the party remains with the rebels. It is incumbent
on every man who makes force his defence, to show an actual force, and that he quitted
the service as soon as he could. Per Lee, C. J., McGrOwlhcr's case, Fost. 14. 216.
1 Ea8t, P. C. 70. U. S. V. Vigol, 2 Dall. 347.
140 HISTORIA PLACITORUM CORONA.
without an overt act, (for then it were treason within the statute of
25 E 3.) or a conspiracy to kill any of his privy council and certain
great officers, tho the event followed not, is made felony.
See for instances of very great riots with multitudes of persons
modo gicerri/io arraiati, which yet amounted not to high treason,
because upon particular quarrels and differences between private
persons. Claus. 5 E. 2 M. 4. inter Griffinum de Pole & Johannem
de Cherleton pro castro de Pole. Pat. S E. 4. part 1. n. 7. dors.
between the citizens and bishop of Norwich.{p) Rot. Pari. 5 R. 2.
n. 45. between the town and university of Cambi^idge, Rot. Pari.
11 H. A. 11. 37. <5' sequentibits, between Hugh de Erdeswick and
others touching the castle of Bothall. Rot. Pari. 13 H. 4. n. 12. be-
tween the lord Ross Sir Robert Tyrrhyt touching Turbary in
JVrovghtly. Rot. Pari. 4 H. 5. n. 15. between Robert
[ 141 ] Whiltingfon and Philip Lingdon and others. H. 26 E. 3.'
Rot. 30. Rex Fitzivauter^s c^d.SQ.{q)
All which, tho they were enormous riots, and done more guerrinOf
yet being private and particular quarrels, not much unlike that be-
tween the earls of Gloucester and Hereford, did not amount to high
treason, but contempts, riots; or, if death ensued, felony, as the case
required. [6]
Bnt going in a warlike manner with drums and arms to surprize
the arclibishop of Canterbury., who was a privy counsellor, it being
witli drums and a multitude (as the indictment was) to the number
of three hundred persons, was ruled treason by all the judges of
England, •Awd,\\\Q, offenders had judgment accordingly; and at the
same time by ten of the judges it was agreed, that the breaking of
prison, where traitors were in durance, and causing them to escape
was treason, altho the parties did not know that tiiere were any
traitors there, upon the case of 1 H. 6. 5. b. and so to break a prison
where felons are, whereby they escape, is felony without knowing
them to be imprisoned for such offense. P. 16 Car. Croke, Thomas
Bensted''s case.(r)
The case of Sir John Oldcastle for levying of war against the king
is entered Rot. Pari. 5 //. 5. n. \\.
The twenty-fifth of September an7io domini 1413, Thomas arch-
bishop of Canterbury the pope's legate by his sentence definitive
(p) Tliis is not to be found among' tlie records.
{q) Nicholas Bnindish and otlicrs to the number of one hundred were sent by Sir
John Filzwauter anncd platis, pladiis, liokelariis, arcubus «^ safrjttis ad modum guerr<B
to seize and take l/oves, asiiins, Sfc. of Thomas Hubert in He rlawr upon tiie lands of the
said Thomas, qiias tenuit de alits dnmxnis i^- nihil de ipso Johanne Fitzwauter ; accor-
din<,'Iy tiiey did so, and curried them away to manors belonging to the said Sir John;
but neither this riot, nor any other the facts, whicli lie or his accomplices were indicted
for, were conceived to amount to treason, since none of them were arraigned of more
than felony; vide supra in notis, p. 137.
(r) Cro. Car. 583. W. Jones 455.
[6] For an account of these private wars which were so prevalent during the early
feudal ages, see Robertson's Charles V. vol, I. 45. 286.
HISTORIA PLACITORUiM CORONA. 141
declared Sir John Oldcastle lord Cohham an heretic, especially in
the point of the sacrament of the eucharist and penance, excommu-
iiicaied hitn, relinquentes ipsumex nunc tanquam hxrelicumjudi-
cio sxcula7-i.{s)
Hill. 1 //. 5. Rot. 7. inter placita regis, Middlesex, there is an
indictment against him before certain commissioners o{ oyer
and terminer of London and Middlesex, xe\\.uv\Q(\. into the [ 142 ]
king's bench to this effect :(/)
" Quod Johannes Oldcastell Ae Coulyng in com' Kane' chivaler,
&. alii lollardi vulgariter nnncnpati, qui contra fidem catholicam di-
versas opiniones liaereticas & alios errores manifestos legi catholicae
repugnantes, a diu est, temerarie tenuerunt opiniones & errores prse-
dictos manutenere, aut in facto minime perimplere valentes, qnam
diu regia potestas & tam status regalis domini nostri regis, qnuni
status & officium praelatiaj dignitatis, infra regnuni Snglise in pros-
peritate perseverarent ; falso & proditorie machinando tam statum
regium quum statum & ofRcium prtelatorum, nee non ordines religio-
sorum infra dictum regnum Anglios penitus adnuliare ac dominuni
nostrum regem, fratres suos, prselatos & alios magnates, ejusdem
regni interficere, nee non viros religiosos, relictis cultibus divinis &
religiosis observantiis, ad occupationes mundanas provocare ; & tam
ecclesias cathedrales, quam alias ecclesias & domos religiosas de reli-
qniis & aliis bonis ecclesiasticis totaliterspoliare acfunditus ad terram
pxosternere, & dictum Johannem Oldcastell regentem ejusdem regni
consiituere, & quamplura regimina secundum eorum voluntatem infra
regnuni prsedictum, quasi gens sine capite, in finaleni destructionem
tam tidei caiholicse & cleri, quam status & majeslatis dignitatis rega-
lis, infra -idem regnum ordinare, falso & proditorie ordinaverunt .&
proposuerunt, quud ipsi insimul cum quampluribus rebellibus don^ini
regis ignotis ad numerum viginti milhCim hominum de diversis parti-
bus regni Anglise modo guerrino arraiatis privatim insurgerent, &
die Mercurii proximo post festura Epiphanise domini anno regni re-
gis nunc primo apud P^illam & parochiam sancti Egidii extra bar-
ram veteris Templi London in qnodam magno campo ibidem una-
nimiier convenirent & insimul obviarent pro nefando proposito suo in
praimissis perimplendo, quo quidem die Mercurii apud Vil-
lum & parochiam prsedictas preedicti Johannes Oldcastell &i [ 143 ]
alii in hujusmodi proposito proditorio perseverantes praidic-
tum domiiium nostrum regem, fratres suos, viz. Thomam ducem Cla-
rencix, Johannem de Lancastre, & Humfridiim de Ltincastre, nee
noji pra^lalos & magnates praedictos interficere, nee non ipsum domi-
iium nostrum regem & haeredes suos de regno suo prasdicto eshare-
dare, &. pramissa onniia & singula, nee non quampkn^a alia mala &
iutolerabilia facere & perimplere, falso & proditorie proposuerunt &.
(s) Sec Slate Tr. Vol I. p. 42,
\t) See Ulate '1\. Vvl.W. Appendix p. 4. Fox in Iiis acts and monuments, Vol. T. p.
655. brings several arjruments to prove this indictment to be a f ir;rcd one; but whatever
the indiclinent was, tliere is reason sufficient to believe tlic pretended conspiracy was so.
See liapiii's history sub anno 141 i.
143 HISTORIA PLACITORUM CORONiE.
imaginaverurit, & ibidem versus campum prsBdictiim modo guerriao
arraiati proditorie modo insurrectionis contra ligeantias suas equita-
veriint ad debellaudum dictum dominum nostrum regem, nisi per
ipsum manu forti gratiose impediti faissent, quod quidem indicta-
mentum dominus rex nunc ceriis de causis coram eo venire fecit ter-
minandum Per quod prscceptum fuit vie' quod non omitteret,
&c. quin caperet prasfatum Johaiinem Oldcastell, si, &c. & salvo,
&c." upon this indictment removed into tlie king's bench he was
outlawed.
All this record and process at the request of the commons was re-
moved into parliament, and in the presence of the citstos re<(m,
lords, and commons was read, and expounded in English to Sir John
Oldcasile, and it was demanded what he could say why execution
should not be done upon him upon that utlary, and he saying nothing
in his excuse " pur que agard est en mesme le parlement per les
seigneurs avani clits, de I'assent de le dit gardein, & la pryer suisdit,
qe le dit Joh?i, come traytoura dieu & heretique notoirement approve
& adjugge, come peirt per un instrument I'archevesque consue ala
dors de cest roll & come traytour a roy & son roialme, soil amesne a
la Ihwer de Londres, & d'illoeques soit treins per my le city de
Londres, tanque as novel surches en le paroche de St. Giles hors de
la baire de viel Temple de Londres, & illoeques soit pendus, & ars
pendant. "(^^)
How this nobleman was pursued by the ecclesiastics, and
r 144 "] the whole story is set down by IValsingham.
That which 1 observe in it is, 1. That the indictment is prin-
cipally founded upon that article of this statute of compassing the
king's death, and yet the overt-act is an assembly to levy- war, and
actual levying of war. 2. Altho this indictment is not expressly
upon this clause of levying of war, for that is not the principal charge
of the indictment, but compassing the king's death, yet the marching
with a great army to St. Giles'' s modo g^ierrino arraiati was an ex-
press levying of war, tho there were no blow yet struck. [7] But 3.
it seems their first meeting to contrive Iheir-coming to St. Gileses, tho
it might be an overt-act to compass the king's death, and so. treason
within the first clause of the statute, yet was not an actual levyingof
war, and so not treason within that clause of the statute ; but
their actual marching in a body modo guerrino &; viodo insurrec-
tionis might be a levying of war within the statute. 4. That actual
levying of war, tho it be a treason, upon which Oldcustle might
have been indicted, yet it was also an overt-act to serve an indict-
meiit for compassing the king's death, as hath been shewed at large
before.
If there be an actual rebellion or insurrection, it is a levying of
(u) The autlior of the triiil of Sir Jnhn OlJcaallc says, that this sentence was in pur-
suance of an act of parliament, wiiich appointed tiiat punislnnent in those cases. See
State Tr. Vol. I. Ji. 4L>.
[7] Fost. 218. Vaughan's case, 5 St, Tr. 17. Salt. G31.
I
HISTORIA PLACITORUM CORONiE. 144
war within this act; and by the name of levying of war it must be
expressed in the indictment. Co. P. C. p. 10.
And in Anderson'' s Rep. part 2 n. 2. after Trinity-term 37 Eliz.{x)
before the two chief justices, master of the rolls, baron Clerk and
Efvens, the case was, that divers apprentices of London and South-
wark were committed to prison for riots, and for making proclamation
concerning the prices of victuals, some whereof were sentenced in the
star-chamber to be set in the pillory and whipt; after which divers
other apprentices and one Grant of Uxbridge conspire to take and
deliver those apprentices out of ward, to kill the mayor of London,
and to burn his hoiise, and to break open two houses near the Tower,
where there were divers weapons and arms for three hundred men,
and there to furnish themselves with weapons; after which divers
apprentices devised libels, moving others to take part with
them in their cLevices, and to assemble themselves at Bun- [ 145 l
AzV/and Tower-hill ; and accordingly divers assembled them-
selves at Bun-hill, and three hundred at the Tower, where they had
a trumpet, and one that held a cloak upon a pole in lieu of a flag,
and in going towards the lord mayor's house the sheriffs and sword-
bearer with others otfered to resist them, against whom the appren-
tices offered violence.
And it was agreed by the judges referees, that this was treason
wiihin the statute of 13 Eliz. for intending to levy war against the
queen; for they held, that if any do intend to levy war for any thing,
that the queen by her laws or justice ought or may do in government
as queen, that shall be intended a levying of war against the queen;
and it is not material, that they intended no ill to the person of the
queen, but if intended against the office and authority of the queen,
to levy war, this is within the words and intent of the statute, and
hereupon Grant and divers others were indicted and executed.
And eodem libro n. 49. (y) the case of Burton mentioned by my
lord Coke, P. C.p. 10. is reported, viz. in the county of Oxford di-
vers persons conspire to assemble themselves, and move others to
rise and pull down inclosures, and to effect it they determined to
go to the lord Norris's house and others, to take their arms, horses,
and other things, and to kill divers gentlemen, and thence to go to Lofi-
don, where they said many would take their parts ; and this appeared
by their confessions: and it was agreed, 1. That this was treason
within the statute of 13 Eliz. for conspiring to levy war against the
queen. 2. But not within the statute of 25 E. 3. because no war
was levied, and that statute extended not to a conspiracy to levy
war.
^ota; in both these cases there was a conspiring to arm them-
selves as well as to assemble, which had they effected and so assem-
bled viore guerrino, it had been a war levied, atid by construction
and interpretation a war levied against the queen.
If any with weapons invasive or defensive doth hold and f 146 "l
defend a castle or fort against the king and his power, this is
(r) 2 And. 4. (j,) 2 And. 66.
VOL. I. — 17
146 HISTORIA PLACITORUM CORONA.
a levying of war against the king within this act. Co. P. C. p. 10.
Vide the statute 13 Eliz. cup. 1 <§• dicta ibid postea.
There is a great difference hetween an insurrection upon the ac-
count of a civil interest and a levying of war.[S]
,/^. recovers possession against B. of a house, &c. in a real action,
or in an ejectione Jirrnx, and a writ of seisin or possession goes to
the sheriff, B. holds his house against the slierilf with force, and as-
sembles persons with weapons for that purpose, who keep the house
with a strong hand against the sheriff, tho assisted with the pofise
coniitatus: this is no treason either in B. or his accomj)lices, but only
a great riot and misdemeanor; the like is to be said touching a man
that keeps possession against a restitution upon an indictment of for-
cible entry.
But if B. either fortifies his own house or the house of
r *142 1 another with weapons defensive or invasive purposely to
make head against the king and to secure himself against
the king's regal army or forces, then that is a levying of war against
the king.
But the bare detaining of the king's castles or ships seems no levy-
ing of war within this statute: vide infra 13 Eliz. cap. 1 <§- dicta
^■6^V/e7n.[9]
If the king's lieutenant in a time of hostility or rebellion within the
realm be assaulted upon their march or in their quarters as enemies,
this is a levying of war; but if upon some sudden falling out or in-
jury done by the soldiers, the countrymen rise upon them and drive
them out, this may be a great riot, and if any be killed by the assail-
ants it is felony in them ; but this seems not a levying of war against
the king, unless there be some traitorous design under the cover of
it : and clans. 26 E. 3. mx. 24. it appears, that an open resistance of
the justices of oyer and terminer in the county of Surrey, viz. re-
sistendo justiciariis, & ipsos justiciarios, quo minus contenta in coni-
missione nostra eis inde facta exequi & facere potuerunt, impediendo,
was felony, and the offenders were executed for the same as felons.
I shall conclude this matter with a consultation of the
[ *143 ] judges, where I was present. All the judges except J.
Windham and J. Atkins were assembled by my lord
keeper, September 1675. to consider of this case, as it was stated in
writing by the attorney general in manner following:
" A great number of the weavers in and about London being
offended at the engine-looms (which are instruments, that have been
used above these sixty years,) because thereby one man can do as much
in a day, as near twenty men without them, and by consequence can
afford his ribbands at a much cheaper rate, after attempts in parlia-
ment and elsewhere to suppress them did agree among themselves
to .rise and go from house to house to take and destroy the engine-
[8] Crirryinjj off or destroyiiifj tiic kinfr's stores, provided for the defence of the king'-
dom, if done in eonjunclioii witit, or in aid of rebels or enemies, will he treason; but
Scots, ifdorie only lor lucre, or some jtrivatc malicious motive. 1 East., V. C. 66.
['.)] '-That case is denied," per Mnrshall, C. J. 2 Burr's Trial, 224. It is denied by
East, 1'. C. 1 vol. 68. Sec also Fast, 2VJ.
HISTORIA PLACITORUM CORONA. ^143
looms; in pursuance of which they did on the 9th, 10th, and 11th of
this instant v^up;ust assemhle themselves in great numbers at some
places to an Imndred, at others to four hundred, and at others,
particularly at St nil ford- Bow to about fifteen hundred.
*' Thev did in a most violent manner break open the houses of
many of the king's subjects, in which such engine-looms were, or
were by them suspected to be, they took away the engines, and
making great fires burnt the same, and not only the looms, but in
many places the ribbands made thereby, and several other goods of
the persons whose houses they broke open; this they did not in one
place only, but in several places and counties, viz. Middlesex, London,
Essex, Kent, and Sitrrei/, in the last of which, viz. at Southwark
tliey stormed the house of one Thomas Byhhy, and tho they were
resisted and one of them killed and another wounded, yet at last they
forced their way in, took away his looms and burnt them ; the value
of the damage they did, is computed to several thousand pounds.
<' This they did after several proclamations made and command
given by the justices of peace and the sheriffs of Middlesex to de-
part, but instead of obeying they resisted and affronted
the magistrates and officers: It is true they had no war- [*144]
like arms, but that was supplied by their number, and they
had such weapons, as such a rabble could get, as staves, clubs,
sledges, hammers, and other such instruments to force open doors.
"There was this further evil attending this insurrection, that the
soldiers and officers of the militia were so far from doing their duty
in suppressing them, that some, tho in arms and drawn up in com-
panies, stood still looking on while their neighbours houses were
broken open and their goods destroyed, others incouraged them, and
others, to whose custody some of the oflenders, who were taken,
were committed, suffered them to escape, so that during all the time
of the tumult little or nothing was done to suppress them, until the
lords of the council were constrained at a time extraordinary to
assemble, by whose directions and orders as well to the civil magis-
trates, as to the king's guards, they were at last quieted."
Five of the judges seemed to be of opinion that this was treason
witliin the act of 25 E. 3. upon the clause of levying war against
the king, or at least upon the clause of the statute of 13 Car. 2.
cap. l.[10.]
1. In respect of the manner of their assembling, who, tho they
had no weapons or ensigns of war, yet their multitudes supplied that
defect, being able to do that by their multitudes, which a lesser num-
ber of armed men might scarce be able to effect by their weapons;
and besides, they had staves, and clubs, and some hammers or
sledges to break open houses, and accordingly they acted by break-
ing open doors and burning the engine-looms and many of the wares
made by them.
2, In respect of the design itself, which was to burn and destroy
[10] Fost. 210.
*144 HISTORIA PLACITORUM CORONA.
not the single engine-looms of this or that particniar person, but
engine-looms in general, and that not in one county only,
[[*1453 hut in sev^eral comities, and so agreeable to Burton's
case.
The other five jndges were not satisfied, that this was treason
within the clause of 25 E. 3. against levying of war, nor within the
statute of 13 Car. 2. for conspiring to levy war.
1. It was agreed, thai if men assemble together and consult to
raise a force inmiediately or directly against the king's persoji, or to
restrain or depose him, whether the number of the persons were
more or less, or whether armed or unarmed, tho this were not a trea-
son within this clause of the statute of 25 E. 3. yet it was treason
within the first clause of compassing the king's death, and an overt-
act sufficient to make good such an indictment, tho no war was ac-
tually levied; and with this accord the resolutions before cited,
especiahy that of the insurrection in the north at Farley wood;(*)
but no such conspiracy or compassing appears in this case, and so
that is not now in question, but we are only upon a point of con-
structive or interpretative levying of war.
2. Here is nothing in this case of any conspiring to do any thing,
but what they really and fully effected; they agreed to rise in multi-
tudes to burn the looms, and accordingly they did it, but nothing of
conspiring against the safety of the king's person, or to arm them-
selves; therefore if what they did were not a levying of war against
the king within the statute of 25 E. 3. here appears no conspiring
to levy such war within the statute of 13 Car. 2. cap. 1. for, for
what appears, all was done, which they conspired to do.
3. It seemed very doubtful to them, whether in the manner of this
assembling it was any levying of war, or whether it were more than
a riot, for in all indictments of this kind for levying af war
r*146l it is laid, that they were more guerrino arraiati, and upon
the evidence, that they were assembled in a posture of war
nrmis offensivis <5' de/ensivis, and sometimes particular circum-
stances also proved or found, as banners, trumpets, drums, &c. and
where they were indicted for conspiring only to levy war, yet there
was this circumstance accompanied it, viz. a confederacy to get arms
and arm themselves, as in GranVs case, and Burlon^s case.
4. It seemed very doubtful to them, whether this design to burn
engine-looms were such a design, as would make it a levying of wax
against the king,*[ll] for it was not like the designs of altering
(*) Vide supra p. 120.
* By 12 Geo. 1. cap. '.H. "If any person shall wilfully break any tools used in the
•wodlleii manufacture, not having- the consent of the owner, or shall break or enter by
force into any liousc or shop by night or by day for such purpose, he shall be adjudged
guilty of felony without benefit of clergy.
[11] By the 7^8 Geo. 4. c. 30. «. 3. it is made felony, punishable with transportation
tfr ini[>risonment, to damage or destroy any silk, woolen, linen, or cotton goods, being in
the loom or frame, &c. or to destroy or damage any loom, frame, machine, &c. or to
enter by forCe into any house, shop, building, &c. with intent to commit any of the said
ofFencoH. R. V. Tacey, R. Sf R. C. C. 452. R. v. Hill, id. 483. R. v. Ashton, 2 B. ^
Ad. 750.
niSTORIA PLACITORUM CORONA. *146
relision, laws, pulling down inclosures generally, as in Biirton^s
case, nor to destroy any trade, but only a particular quarrel and
grievance between men of the same trade against a particular engine,
that they thought a grievance to them, which, tho it was an enor-
mous riot, yet it would be difficult to make it treason. Vide statutes
S H. 6. cap. 27. 9 H. 6. cnp. 5.(t)
Many of them therefore concluded, that if Mr. Attorney should
think fit to proceed as for a treason, the matter might be specially
found and so left to farther advice, or rather that according to the
clause of the statute of 25 E. 3. the declarative judgment of the king
and both houses of parliament might be had, because it was a new
case and materially differed from other cases of like nature formerly
resolved.
Upon the conclusion of this debate we all departed, and Mr. Attor-
ney upon consideration of the whole matter, it seems, thought fit to
pi-oceed for a riot, and caused many of them to be indicted for riots,
for which they were convicted and had great fines set upon them,
and were committed in execution and adjudged to stand upon the
pillory.
Touching the laws of treason in Ireland, by the statute of [ 147 j
IS H. 6. cap. 3. levying horse or foot upon the king's sub-
jects against their will shall be treason ; this they call cessing of sol-
diers upon men, and hath been often done by the lieutenants or
deputies of Ireland by consent of the council in some cases.
Among many cumulative treasons charged upon the late earl of
Strafford the king's deputy in Ireland, this one thing of cessing of
soldiers upon the king's subjects in Ireland was the chief particular
treason charged upon him.
It was insisted upon for the earl's defence, that by the statute of
10 H. 7. in Ireland, cap. 22. called Foyninsi's law, all the statutes of
England are at once enacted to be observed in Ireland; and there-
fore the statute of 25 E. 3. declaring treasons, and the statute of 1 H.
4. cap. 10. enacting, that nothing shall be treason but what was with-
in that statute, the treasons enacted in Ireland in the time of H. 6.
and afterwards before 10 H. 7. were repealed, and consequently this
statute of 18 H. 6. cap. 3.
But that seems not to be so, for the general introduction of the
statutes of England being an affirmative law could not be intended
to take away those particular statutes, that were made in Ireland for
the declaring of treason, as this and that also of the same year, cap. 2.
for taking Comericke.{z)
But surely this was no levying of war within this statute, (a) either
in respect -of the matter itself or of the person that did it, he being
(+) Concerning the riots committed by the Welsh upon the dragmen of Severn, vide
infra, p. 151.
(z) That is, for taking thieves, robbers, or rebels into safe guard.
(a) Tho this were not levying of war, yet being cessing of soldiers upon the subject,
it was treason within the express words of that statute; nor does our author assign any
reason, why an act of lord deputy and council is not within tlie penally of thut law. See
Camd.Eliz.p.2ld.
147 HISTORTA PLACITORUM CORONJE.
the king's lieutenant, neither could an act by the lord deputy and
council of this nature be construed to be within the penalty of this
act, if it were in force ; yet for this and other cumulative treasons he
was attainted by act of parliament, but that attainder was very justly
repealed by the statute of 14 Car. 2.
Now I shall draw out some observations and conclusions
[ 148 ] from the precedents and instances before given touching this
■' . obscure clause of levying war against the king.
1. A conspiracy or confederacy to levy war against the king is not
a levying of war within this clause of the statute of 25 E. 3. for this
clause requires a war actually levied. Co. 1\ C. p. 10.
And this appears j^/-^/ by those temporary laws, that were made to
continue during the king's or queen's life, which made conspiring to
levy war with an overt act evidencing such conspiracy to be treason,
as the statutes of I S,- 2 Ph. 8,^ M. cap. 10. 13 Eliz. cap. 1. and 13
Car. 2. cap. 1. and secondly by the resolution of the judges in the
case oi Burton 39 Eliz. cited by my lord Coke, P. C.p. 9, 10.[12]
2. That yet such a conspiracy or compassing to levy war against
the king directly or against his forces, and meeting and consulting for
the eflecting of it, whether the number of the conspirators be more
or less, or disguised under any other pretence whatsoever, as of re-
formation of abuses, casting down inclosures particular or generally,
nay of wrestling, football-playing, cock-fighting; yet if it can appear,
that they consulted or resolved to raise a power immediately against
the king, or the liberty or safety of his person, this congregating of
people for this intent, tho no war be actually levied, is an overt-act
to maintain an indictment, for compassing the king's death within
the first clause of the statute of 25 E. 3. for it is a kind of natural or
necessary consequence, that he, that attempts to subdue and conquer
the king, cannot intend less than the taking away his life; and indeed
it hath been always the miserable consequence of such a conquest,
as is witnessed by the miserable tragedies of E. 2. and B. 2. and this
was the case of Oldcastle and Essex.
3. That yet conspiring to levy war, {viz. to do such an act, which
if it were accomplished and attained its end would be an actual levy-
ing of war) and being accompanied with an overt-act evidencing it,
(tho it be not treason within this clause of the act of 25 E. 3.) yet
was treason during the queen's life by the statute of 13
[ 149 ] Eliz. cap. 1. and is treason at this day by the statute of 13
Car. 2. cap. 1. during the life of our now sovereign.
But then the overt-act (be it speaking, writing, or acting) required
by these statutes to evidence the same must be specially laid in the
ilidictment, and proved upon the evidence : thus in Grant's case and
JJnrlon's case the conspiring to fetch arms at the houses therein
mentioned Was an overt-act proving this conspiracy to levy war.
4. That a levying of war with all the circumstances imaginable io
[12] And the Act of 3G Geo. 3. c. 7. whicli was to continue in force during the king's
life.
niSTORIA PLACITORUM CORONA. 149
eive it that denotinnation, as cum vexiUis explicating cum mnliitu^
dine i^enlium armatarum &," modo guerrino arraiaC, yet if it be
upon a mere private quarrel between private, tho great persons, or
to throw down the inclosures of such a manor or park, where the
party tho without title claims a common, or upon dispute concerning
the propriety of liberties or franchises, this, tho it be in the manner
of it a levying of war, yet it is not a levying of war against the king,
ttio bloodshed or burning of houses ensue in that attempt, but is a
great riot, for which the oftenders ought to be fined and imprison-
ed ;[13] and if any be killed by the rioters in the riot, it may be
murder in the assailant.
This was the case of the earls of Gloucester and Hereford, anno
20 £. 1. tho before the statute of 25 E. 3. and the several great riots
above-mentioned, to which we may add Rot. Pari. 50 E. 3. n. 140,
164. 11 H. 4. n. 36, 57. 13 ^. 4. n. 14. IS H. 6. n. 30.
5. An actual levying of war therefore against tlie king to make a
treason, for which the offender may be indicted upon this clause of
the statute for levying of war against the king, consists of two princi-
pal parts or ingredients, viz. 1. It must be a levying of war. 2. It
must be a levying of war against the king.
6. What shall be said a levying of war is partly a question of fact,
for it is not every unlawful or riotous assembly of many persons to
do an unlawful act, tho de facto they commit the act they intend, that
makes a levying of war, for then every riot would be trea-
son, and all the acts against riotous and unlawful assem- (] 150 ~\
blies, as 13 ^. 4. cap. 7. 2 H. 5. cap. 8. 8 H. 6. cap. 14. and
many more(6) had been vain and needless; but it must be such an
assembly as carries with it specieni belli, as if they ride or march
vexillis explicatis, or if they be formed into companies, or furnished
with military officers, or if they are armed with military weapons,
as swords, guns, bills, halberds, pikes, and are so circumstanced, that
it may be reasonably concluded they are in a posture of war, whicli
circumstances are so various, that it is hard to define them all par-
ticularly.
Only the general expression in all the indictments of this nature,
that I have seen, are more guerrino arraiati, and sometimes other
particulars added as the fact will bear, as cum vexillis explicatis,
cum armis defensivis 4* offensivis, cum tympanis Sf tuhis: but
altho it be a question of fact, whether war be levied or conspired to
be levied, which depends upon evidence, yet some overt-act nuist be
shewn in the indictment, upon which the court may judge ; and this
is usually modo guerrino arraiati, ov armati, ox conspirmg to get
arms to arm themselves.
And tlierefore in the cases of Burton and Grant before-men-
tioned, who were indicted and convicted upon the statute of 13 Eliz.
(6) See 3 <^ 4 Edw. VI. cap. 5. 1 Mar. cap. 12. 1 Geo. I. cap. 5.
[13] Post. 210. Havok. c. 17. s. 25.
]50 HISTORIA PLACITORUM CORONiE.
cap. 1. for conspiring to levy war for pulling down inclosnres, &c.
tiiere is not only a conspiracy to do (he thing, but also to gain arms
and weapons at the lord Norri&'s house, and elsewhere to arm them-
selves lor that attempt.
And the reason hereof seems to be, because, when an assembly of
people thus arm themselves, it is a plain evidence, that they mean to
defend themselves, and make good their attempts by a military force,
and to resist and subdue all power, that shall be used to suppress
them; and besides, the very use of weapons by such an assembly
without the king's licence, unless in some lawful and special cases,
carries a terror with it, and a presumption of warlike force^ and
therefore under a distinct and special restraint by the sta-
[ 151 ] tute of Wtstminst. 2.(c) and the statute(fi^) of 7 E. 1. de
defensione portandi arma.
7. Whether the bare assembling of an enormous multitude for
doing of these unlawful acts without any weapons, or being tnore
giierrino arraiati, especially in case of interpretative or construc-
tive levying of war, be a sufficient overt-act to make a levying of
war within this act, especially if they commit some of these acts
themselves, is very considerable and seems to me doubtful. 1. Be-
cause I have not known any such case ruled. 2. Because the acts
of 3 & 4 Ed. 6. cap. 5. and 1 Mar. cap. 12. (which must be intended
of such unarmed assemblies) makes it in some cases felony, in some
cases only misdemeanor. 3, Because it is very difficult to determine
what that number must be, that must make treason, and less than
which must be only a riot ; this therefore should be well considered,
and the direction of the statute of 25 E. 3. to expect the declaration
of parliament in like cases is a safe direct-ion, and so much the
rather, because the statutes of E. 6. and queen Mary seem to look
the other way,(f') to which may be added the great riots committed
by the foresters and Welsh upon the dragmen of Severn, hewing all
their boats to pieces, and drowning the bargemen in a warlike pos-
ture. Rot. Pari. 8 H. 6. n. 30, 45. 9 H. 6. n. 37. upon which the
statute of 9 H. 6. cap. 5. was made : I forbear therefore any opinion
herein.
S. But whether the assembly were greater or less, or armed or
not armed, yet if the design were directly against the king, as to do
him bodily harm, to imprison, to restrain him, or to offer any force
or violence to him, it will be treason within the first clause of com-
passing the king's death, and this assembling and consulting or
practising together to this purpose, tho of but two or three, will be
an overt-act to prove it; therefore all the question will be
[ 152 3 only touching interpretative or constructive levying of war,
whereof hereafter.
(c) I don't find any tliinp to tliis purpose in tlic statute of Westminst. 2. so suppose
the btiitutc here meant is llic statute of Nortliamplun 2 E. 3. caj). 3. wliercby it is pro-
hiliitcd that any one briiiQ; forrc in aflVay of the people, or go armed by night or by day.
See Co. J'. C. p. 158 Sf ] t;(). F. N. li. p. 552.
(d) Or rallier jjroelumalion ; see the beginnihg of this chapter,
(c) As docs also 1 Geo. I. cap. 5.
HISTORIA PLACITORUM CORONiE. 152
9. If there be war levied as is above declared, viz. an assembly
more !^uerri?io arrciiati, and so in the posture of war for any trea-
sonable attempt ; this is helium levatiim, tho not helium percussurn :
and thus far touching the levying of war, as in relation to the man-
ner of it.
10. But besides the circumstances requisite to denominate a levy-
ing of war in respect to the manner of it, there is also requisite to
make a treason witliin this clause, that it be a levying of war against
the king, which is the scope, end and termination thereof, for, as
hath been said, there may be a levying of war between private per-
sons upon private quarrels, which is not a levying of war against
the king, and so not treason within this clause of this act.
11. A levying of war against the king therefore is of two kinds,
either expressly and directly, or by way of interpretation, construc-
tion or exposition of this act : the former is, when a war is levied
against the person of the king, or against his general, or army by
him appointed, or to do the king any bodily harm, or to imprison
him, or to restrain him of his liberty, or to get him into their power,
or to enforce him to put away his ministers, or to depose him; many
instances of this kind may be given, such as was in truth the riding
of the earl of Essex into London armed with swords and pistols,
his solliciting of the citizens to go with him to court to remove from
the queen her ministers and counsellors, his fortifying of his house
against the queen's officers, which were in truth a levying of war,
tho his indictment was upon the first clause of compassing the queen's
death, which was more clearly included within these actions.
12. Constructive or interpretative levying of war is not so much
against the king's person, as against his government: if men as-
semble together 97iore guet-rino to kill one of his majesty's privy
council, this hath been ruled to be levying of war against the king.
P. 16 Car. 1. Cro. 583. Betisted's case before cited, and accord-
ingly was the resolution of the house of lords 17 B. 2. Talbot's case
above-mentioned.
So in the case mentioned by my lord Coke in the time of
H. 8. Co. P. C. p. 10. levying war against the statute of riSS"]
L(ibotirers[l4'\ and to itihance servants wages was a levy-
ing of war against the king; and altho levying of war to demolish
some pari icular inclosures is not a levying of war against the king,
Co. P. C.p. 9. yet if it be to alter religion established by law, or to
go from town to town generally to cast down inclosures, or to (\e-
liver generally out of prison persons lawfully imprisoned, this hath
been held to be levying of war against the king within this act, and
the conspiring to levy war for tliose purposes treason within that
clause of the act of 13 Eliz. cap. 1. as was resolved in Barton's
case and Grant's case above-mentioned ; and the like resolution
[14] Hatch, c. 17. s. 25. Fosf. 211. Lord Georfie Gordon's case, 21. CobhetCs St. Tr.
485. Douirl. 590. 4 lil. Com. bl.
VOL. I. — IS
153 HISTORIA PLACITORUM CORONA.
was in the case of the apprentices that assembled more guerrino to
pull down bawdy-houses.
It is considerable how these resolutions stand with the judgment
of parliament in 3 & 4 Ed. G. cap. 12. which makes special provi-
sions to make assemblies above twelve to alter the laws and statutes
of tlie kingdom, or the religion established by law, or if above forty-
assemble for pulling down inclosures, burning of houses, or stacks of
corn, treason, if they departed not to their homes witliin an hour
after proclamation, or after proclamation put any of these designs in
practice, which is nevertheless reduced to felony within clergy by the
statute of 1 Mar. sess. 2. cap. 12. Th^se oifenses being the same
with those adjudged treason in Burfon's case and some others be-
fore cited, why was it thought necessary for an act of parliament 3
S,' 4 Ed. 6. to make it treason under certain qualifications, and why
reduced to felony within clergy by the statute of 1 Mar. cap. 12. and
the statute of 3 ^ 4 ^. 6. repealed? It seems that altho the unlaw-
ful ends of these assemblies thus punished by 3 4' 4 Ed. 6. and 1
3'Iar. were much the same with those of Burlon and Grant and
others, that were adjudged treason, yet the difterence between the
cases stood not in that, but in the manner of their assembly; those
that w-ere adjudged treasons in Burton's and Grant's case were,
because it was a conspiracy to arm themselves and levy a war more
guerrino.
But those, that were thus heightened to treason by 3 8; A
r 154 ] E. 6. and reduced to felony by 1 Mar. were not intended of
such, as were more giiei'inno arraiati, dov a levying of war,
tho their multitudes were often great, and tho they they did put in
lire the things they conspired to effect, and so were but great riots
and not levying war within this clause of 25 E. 3. and therefore
those acts inflicted a new and farther punishment on them.
III. Efi son realme : hitherto it hath been said what is a levying
of war ; we are now to consider the place. En son realme.
The realm of England comprehends the narrow seas, and there-
fore if a war be levied upon those seas, as if any of the king's sub-
jects hostily invade any of the king's ships, (which are so many
royal castles) this is a levying of war within his realm, for the nar-
row seas are of the ligeance of the crown of England : vide Seldeni
Mare clansum.
And this may be tried in the county next adjacent to the coast by
an indictment taken by the jurors for that county before special com-
missioners o{ oyer and terminer, de quo vide infra, ^\\& in tlie chap-
ter of piracy : vide 5 R. 2. Trial 54.
It is true, before the statute of 28 H. 8. cap. 15. those treasons
were usually inijuircd and tried by special connihssion, wherein the
admiral and his lieutenant were named, as likewise other felonies
conmiitted upon the sea.
lint divers instances were in the time of E. 3. whereby such
oflenses upon the sea were punished as treason or felony in the king's
bench. 40 ^Iss. 25. A Norman captain of a ship robs the king's
HISTORIA PLACITORUM CORONiE. 154
subjects upon the sea, he being taken was hanged as a felon, but the
English that assisted him were drawn and hanged as traitors ; and
by the statute of 2S H. 8. cap. 15. there is a direction of a special
commission to try them in such counties or places as shall be assign-
ed by such commission according to the method of trials of such
offenses at the common law, but before that statute they might be
tried by special commission at the common law, and according to
the course of the common law ; but of this alibi in tractatu de
^dmiruUtale.
For treasons and other capital offenses in Scotland there
is a provision made by the statute of 4 Jac. cap. 1 and 7 Jac. [ 155 ]]
cap. 1.
Ireland, tho part of the dominions of the crown of England, yet
is no part of the realm of England, nor infra quatuor mar la, as
hath been ruled temp. E. 1. Morrice Howard'' s case : the like is to
be said for Scotland even while it was under the power of the crown
of England, as it was in sometimes of E. 1. and some part of the
time of E. 3. S Rich. 2. Continual claim 13.
For Ireland hath the same laws for treason that England, tho it
hath some more ; yet for a levying war, or other treason in Ireland
the offender may be tried here in England by the statute of 35 H. Q.
cap. 2. for treasons done out of the realm, as was resolved in the
case of 0-Rork, H. 33. Eliz.{*) and after that in Sir John Perrot's
case,(/) Co. P. C.p. 11. 7 Co. Rep. Calvin's case, 23. a.
In the case of the lord Macguire{g) an Irish peer, who was in-
dicted in Middlesex for high treason for levying war again the king
in Ireland, he pleaded to the indictment, that he was one of the peers
and lords of parliament in Ireland, and demanded judgment, if he
should be arraigned in England for a treason committed in Ireland,
whereby he should lose the benefit of trial by his peers; but it was
resolved, 1. That for a treason in Ireland a man may be tried here
in England by the statute of 35 H. 8. for it is a treason committed
out of the realm. 2. That altho Macguire, if tried in Ireland for
his treason, should have had his trial by his peers, as one of the
lords in parliament, which he cannot have here, but must be tried
by a common jury, yet that altered not the case; he was therefore
put upon his trial by a Middlesex jury, and was convicted and
had judgment, and was executed. H. 20 Car. 1. B. R. so that
the opinion 20 Eliz. Dy. 360. b. was ruled no law : vide Co.
Lift. 261.
And the same that is said of Ireland may be said in all
particulars of the isle o{ Man, Jersey, Guernsey, Surk, and [ 156 ]
^Ilderney, which are parcel of the dominions of the crown
of England, but not within the realm of England as to this purpose
concerning treason ; yet they have special laws of their own appli-
cable to criminals and jurisdiction for their trials : as touching treason
conmiitted in fVales before the statute of 26 H. S. cap. 6. no treason,
( * ) Camd. Eliz. p. 458.
(/) See his trial in Stale Tr. Vol. I. p. 181. (£•) State Tr. Vol. I. p. 928.
156 HISTORIA PLACITORUM CORONA.
murder, or felony committed in fFa/es was inquirable or triable be-
fore commissioners of o?/er and teinniner, or in the king's bench in
England, but before justices or commissioners assigned by the king
in those counties of Wales where the fact was committed. P. 2 H. 4.
Rot. 18. Salop'': ^'■Johannes Kynaston indictatus fuit quod ipse con-
sentiens fuit ad falsam & proditiosam insurrectionem Oweyn Glyn-
dour & aliorum fVallicoriirn, & sciens de toto proposito eorundem,
qui proditiose combussernnt villas de Glyndour Dyiiby, &c. & quod,
proditiose misit Johannem iilium sunm bene armatum & arraiatum
pro guerra & IVillielmum Hunte sagittarium ad prsedictum Oweyn
& exercitum JVallicorum, &c. dicit quod prsedictaB villse, in quibus
supponitur proditiones pra3dictas factas fuisse, sunt infra terrani
fValllae & extra corpus com' Salop' & legem terras Ans^lisa, unde non
intendit quod dominus rex de proditionibus prgedictis in hoc casu
ipsum impetire velit, sen ipsum ponere velit inde responsurum, &
quia plenarie & certitudinaliter testificatum est, quod proedictge villiB
sunt infra terram Wallix & extra corpus comitates Salop' & legem
terra3 Angliae, & Thomas Covele attornatus ipsius regis coram ipso
rege inde examinatus hoc non dedicit, & sic justiciarii ad inquiren-
dum de proditionibus prsedictis infra IValliam factis virtute com-
missionis pra3dictse inquirere minime potuerunt nee proditiones prae-
dicias sic in terra /^Fa/Z/c-e fact a3 per legem terrse ./^//^//a? triari nee
terminari possunt, consideratum est, quod quoad prasdictas pro-
ditiones praidictus Johannes Kynaston eat inde quietus, &c." But
it is true by the statute of 26 H. 8. cap. 6. counterfeiting of coin,
washing,clipping or minishing of the same, felonies, murders, wilful
burnings of houses, manslaugliters, robberies, burglaries, rapes, and
accessaries of the same and other oifenses feloniously done
\_ 157 ] iu Wales,{h) or any lordship marcher may be inquired of,
heard and determined before the justices of gaol-delivery
and of the peace and every of them in the next adjacent county : this
act is confirmed by the great statute of Wales 34 & 35 H. 8. cap. 2-6.
which settles the grand sessions and justices thereof, and gives the jus-
tices of the grand sessions power to hold all manner of pleas of the
crown, and to hear and determine all treasons, felonies, &c. within
the precinct of their commissions, as fully as the court of king's bench
may do in their places within the realm of England; so that as to
those offenses enumerated in the statute of 26 //. 8. the justices of
gaol-delivery in the adjacent counties, viz Gloucester, Hereford, Salop
and Wigorn, had thereby a concurrent jurisdiction with the justices
of the grand session. (/)
But whether the statute of 26 //. S. extended to treason for com-
passing the king's death or levying of war,(/L') or whether the same
(/() For this act extends to all the anticnt counties of Wales, as well as the lordships
marchers; and so it was resolved in Althoc's case for a murder in Pembrokeshire. T. 9
Geo. I. B. R.
(i) 1 Mod. G4, 68.
{k) It should seem that it did not, and that was one reason of making the statute of
32 H. cap. 4. whcrehy all treasons or misprisons of treasons cominitted in Wales may
be presented and tried in such shires and hefore such commissioners as the king shall
appoint, in like manner as if the facts had been committed in such sliires.
HISTORIA PLACITORUM CORONiE. 157
remained only triable by the justices of the grand sessions, seems
doubtful, and the rather, because that statute is not construed by
equity, and therefore it extends not to an appeal of murder in an ad-
jacent county, and so it was adjudged Hil. 7 Cur. B. R. Senllrj and
Price;{l) but at this day 26 H. S. cup. 6. stands repealed by 1 & 2
Ph. & M. cup. 10. as to the trials of treason. (m)
It is true, that in other criminal causes, that are not capital, as in
cases of indictments of riots, they may he removed by certioruri into
the king's bench, and when issue is joined they may be tried in the
next Eii'j^lish county, T. 16 Juc. Sir John Cureid's case(/i) and
divers others, as well as in a q\w minus, whicii is at tlie
king's suit : but whether a certioruri lies into Wales upon an f 158 1
indictment of treason or felony hath been doubted M. 9
Car. B. R. Chedley^s case:(o) it seems a certiorari may issue for a
special purpiose, as to quash the indictment for insufficiency or to
plead his pardon, but not as to trial of the fact,(/7) hut it shall be
Sent down by mittimus according to the statute of 6 H. 8 cap. 6. be-
cause it is in a manner essential for felony or treason to be tried in
the proper county, unless where a statute particularly enables it,
which it did in the case of 26 H. 8. only whilst it was in force, where
the indictment as well as the trial is in the adjacent county.
But certainly IVules is within the kingdom of England,{cj) and
therefore not within the statute of 35 H. 8. cap. 2. for trial of foreign
treasons.
If a felony or treason be committed in Durham, a certiorari lies
to remove it into the king's bench out of Durham directed to the
justices of peace, ojiyer and terminer, or gaol-delivery there; for since
the statute of 27 H. 8. cap. 24. they are all made by the king's com-
mission, and so the proceedings before them are his own suit, and
thus it was done in Ruttabie^s case(r) upon debate; but if the party
plead not guilty it shall be sent down thither to be tried, as was done
in that case. T. 1653. They o{ Durhum claim a privilege not to be
sworn out of the precinct of the county palatine. Vide the statute
of 2 H. 5. cap. 5. 9 //. 5. cap. 7. \\ H. 7. cap. 9. for treasons and
felonies in Tinda I and Hexamshire.il 5]
(') Cro. Car. 247. W. Jones 255.
('") The I & 2 Ph. Sf M. reducing all trials for treason to the order and course of the
common law is a virtual repeal of 26 H. 8. and by the same reason of 32 H. 8. also as to
treason.
in) Cro. Jac. 484. 2 Rol. 28. 1 Rol. Abr. 394.
(0) Crp. Car. 331.
(p) But yet it has been done in felony as to the trial of the fact, as in the case of Morris
1 Ven. 93, 146. Herbert's case, Latch. 12.
(7) 2 Rol. 28. (r) Vide infra, p. 467. and Part U.p. 212.
[15] As to the place at which the accused is to be tried, the Constitution of tlie United
Stales, (Art. 3. Sect. 2, c. 3.) provides that the trial sliiill be held in the Slate where the
crime shall have been commilled; but, when not committed within any State, the trial
shall be at such place or places as Congress may by law have directed. By sect. 2'Jth
of the .\ct ofCongrcss of24<A Sept. 1789. Scss. 1. ch. 20. in cases punishable with death,
the trial shall be held ia the county where tlie ofFonce was committed, or when that can-
158 HISTORIA PLACITORUM CORONA.
And thus far concerning treason in levying of war against the
king.[l6]
lict be done without gjreat inconvenience, twelve petit jurors at least shall be summoned
from tlicnce. By the 8th. sect. oftlieAct of 30/A April, 1790, if any person shall commit
upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any
particular State, any offence which if committed within the body of a county, would by
the laws of the Uniled States be punishable with death, &,c., the trial shall be in the dis-
trict where the offender is apprehended, or into which he may be first brought. See Ex
parte Bvllman v.Swartwout, 4 Cranch. 136. Serg, on Cons. 246.
There seems to have been no regular mode at common law for the trial of treasons
conmiilted out of the realm. It is said that if the court remove into a different county
from that wherein the indictment was found, the trial must still be by jurors returned
from the first county, agreeable to the rules of the common law. 1 East. P. C. 103.
[16] Levying of war, under the statute of Edw. 3. is either direct, or constructive.
Direct, when it is levied against the person of the king ; to dethrone, or imprison him,
or to get possession of his person, or to oblige him to alter his measures of government,
or to remove evil counsellors, &.C., and this, whether attended with the pomp and cir-
cumstance of open war or no. And every conspiracy to levy war for these purposes,
though not treason within the clause of levying war, is yet an overt act within the other
clause of compassing the king's death. Fost. 210. Ante, 131. Hawk. c. 17. s. 23. Arch.
C. P. 463. 1 East, P. C. 66. In case of war levied directly against the king, all per-
sons assembled and marching with the rebels are guilty of treason, whether they are
aware of the purpose of the assembly, or aid and assist in committing acts of violence
or not. R. v. The Earls of Essex and Southampton, Moor, 621 ; unless compelled to.
join and continue with them pro tiinore vwrlis. Ante, 139. 3 Ins. 10. Fost. 13. 216.
But in the case of a constructive levying of war, those only of the rabble whj actually
aid and assist in doing those acts of violence which form the constructive treason are
traitors ; the rest are merely rioters. See R. v. Messen<rer et al, Kel, 70. 79. 1 Sid. 338.
2 St. Tr. 585. 594. R. v. Green Sf Beddell, O. B. 20 Car. 2.
Constructive levying of war is levelled, not against the king's person, but against his
royal majesty, or government. Ante, 152. Fost. 211. 1 East P. C. 72. This is when
an insurrection is raised to reform some national grievance, to alter the established law,
or religion, to punish magistrates, to introduce innovations of a public concern, to ob-
struct the execution of some general law by an armed force, or for any other purpose
which usurps the government in matters of a public and general nature; also, assem-
bling together for the purpose of destroying all meeting houses, all bawdy houses, all
enclosures, &lc., or to reduce by force the general price of victuals, to enhance the com-
mon rate of wages, to expel all foreigners, to release all prisoners, or to reform by num-
bers or an armed force any real or imaginary grievance of a public and general nature,
in which the insurgents have no peculiar interest. 1 East, P. C. 73. But a rising for
tlie purpose of throwing down the enclosures of a particular manor, park, common, &,c.,
or to remove a local nuisance, to release a particular prisoner, unless imprisoned for
treason, or even to oppose the execution of an act of parliament, if it only affect the
district of tlic insurgents, as in the case of a turnpike act, is not treason ; nor is a pri-
vate quarrel between subject and subject, though they meet in battle array. 1 East,
P. C. 76. FoH. 219. 4 Bl. Com. 81.
The term, levying war, is a technical term, borrowed from the English law, by the
framers of the Constitution of the United States, and has the same meaning as when
used in the statute 25 Edw. 3. which is to be collected, as well from adjudged cases, as
from the writings of approved elementary authors. 2 Burr's Tr. 402. Tr. of Fries, 167.
Any insurrection or rising of any body of the people within the United States to attain
or effect, by force or violence, any object of a great public nature, or of a public and
general concern, is a levying of war against the United States, Tr. of Fries, 196; or op-
posing by force of arms an Act of Congress with a view' of defeating its etiicacy, and thus
defying the authority of the government; Id. 168. U. S. \. Vigol, 2 Dall.Ml. Any
combination to subvert by force the government of the United States, violently to dis-
nicnibcr the Union, to compel a change in the a<iministration, to coerce the repeal or
adoption of a general law, is a conspiracy to levy war ; and if the conspiracy be carried
into effect by tiie actual employment of force, by the embodying and assembling of men
for the purpose of executing the treasonable design which was previously conceived, it
amounts to levying of war. And it has been held that arms are not essential to levying
HISTORIA PLACITORUM CORON.^. 158
of war, provided the force assembled be sufficient to attain, or perhaps to justify attempt-
ing the object without them. 2 Burr's Tr. 421. 4 Cranch. 26. 1 Paine, C. C. R. 271.
Tr. of Fries, 197. An insurrection, the object of which is to suppress an office of excise,
established under a law of the United States, and to compel the resignation of the excise
officer, and marcliing with a party to the house of such officer in arms, marshalled and
arrayed, and committing acts of violence and outrage there, with a view to render void
an Act of Congress, or to prevent its execution, by force or intimidation, is a levying of
war against the United States. U. S. v. Vigol, 2 Dall. 346. U. S. v. Mitchell, 2 id. 355.
The travelling of individuals, either separately or in bodies, to tiie place of rendezvous ia
pursuance of the conspiracy to levy war, but not in military form, would not, it seems,
constitute levying of war; but the meeting of particular bodies, and marching in a mili-
tary form, or embodying in that form in the first instance, would be sufficient to consti-
tute it. U. S. V. Burr, 4 Cranch, 485. To make an assemblage treasonable, it must be
in force and in a warlike posture ; it must be in a condition to make war, and with such
appearance of force as would justify the opinion, that they met for that purpose; other-
wise, an assemblage, be the design ever so treasonable, is not treason by levying war.
It is not indispensably requisite that such an assembly sh.ould have arms, nor that hostili-
ties should have commenced by engaging the military force of the United Stales, or that
force or violence should be applied ; except, perhaps, where the design is, not to overturn
thegovernment, but to resist the execution of a law; for then the judges of the United States
seem to have required force. But when a body of men are assembled for the purpose of
making war against the government, and arc in a condition to make that war, the assem-
blage is an act of levying war. So, if men be enlisted, and march prepared for battle, or
in a condition for action, it is an overt act of levying war, though they do not come to
battle or action. So, cruising under a commission from an enemy, in a warlike form, and
in a condition to assail those of wliom the cruiser is in quest. U. S. v. Burr, 4 Cranch, 415.
487. And if a territory of the United States were to be revolutionized, though only as a
means for an expedition against a foreign power, the act would be treason. 1 Burr's Tr.
15. It was the opinion of the Court in the trial of Fries, {pp. 197. 403.) that force is ne-
cessary to complete the crime of levying war ; though the quantum of force is immaterial.
Bgt the case before tlie Court was a levying of war, by resisting the execution of an Act
of Congress.
The assembling of bodies of men, armed and arrayed in a warlike manner for pur-
poses only of a private nature, is not treason; although the judges and other peace
officers should he insulted or resisted. Tr. of Fries, 197. 1 Paine, C. C. R. 265.
With regard to the persons who are to be considered as levying war. All those who
perform' tlie various and essential military parts of prosecuting the war, which must
be assigned to different persons, may with correctness and accuracy be said to levy
war. 2 Burr's Tr. 403. If war be actually levied, that is, if a body of men be actually
assembled for the purpose of effecting by force a treasonable object, all those who per-
form any part, however minute or however remote from the scene of action, and who
arc actually leagued in the general conspiracy, are to be considered as traitors. Ex
parte Bollinan tSf Swarlwout, 4 Cranchr, 126. If an army should be actually raised
tor the avowed purpose of carrying on an open war against the United States and sub-
verting their government, the point must be weighed very deliberately, before a judge
would, venture to decide that an overt act of levying war had not been committed by a
commissary of purchases, or by a recruiting officer holding a commission in the rebel
service, who, though never in tlie camp, executed the particular duty assigned to him.
Per Marshall, C. J 2 Burr's Tr. 402. The true criterion to determine whether acts
conimiitcd are treason, or a less offence, is the quo animo or the intention with which
the j)cople assembled. When the intention is universal or general, as to effect some
object of a general public nature, it will be treason; and cannot be considered, con-
strued, or reduced to a riot. Per Chase, J., Tr. of Fries, 197. See also Serg. an the
Const. 367. Ruwle on the Const. 139. Davis' Virg. C. L. 54.
Levying war, in the Constitution of the United States, seems to comprehend only,
what in the English books, is called coni^tructive Icvj'ing of war. Direct levying of war
being aimed at Uie person of the king, the authorities which come within that branch of
treapun, are of course, inapplicable here; for instance, a conspiracy to levy war, if
direct, is an overt act of compassing the king's death ; but if constructive, is no treason
at all. Again, in case of constructive levying of war, persons joining with rebels, not
being pri\y to their intent at the time, if they commit no act of force, or be not aiding
or iiR»i-<ting the rest, their being present is no presumption of guilt. R. v. Green cf
Beddell, at the Old Bailey, 20 Car. 2.; but if it be a direct levying, they arc all traitors.
158 HISTORIA PLACITORUM CORONA.
R. V. The Earl of Essex et al. Moor, 621. And the English cases of constructive levy,
ing of war have been always cited in the American courts and admitted by the judges
as authorities. Judge Chase, in the TV. of Fries, p. 180, said, that the court would ad-
mit of quotations wliich rei'erred to what constituted constructive levying of war against
the king of Great Britain in liis regal capacity; or in other words, of levying war
against his government, but not against his person. He begged the attorney to read
only tliose parts of the cases wliich referred to what could be treason in the Unitpd
States; and nothing which related to compassing the king's death. See the arguments
in this case, of Messrs. Dallas (91) and Jiawle (161.) Davis'' Virg. Criin. Law, 56.
Jiawle on Const,, lil.
[159] CHAPTER XV.
CONCERNING TREASON IN ADHERING TO THE KING's ENEMIES WITHIN
THE LAND OR WITHOUT.
The words of the statute of 25 E. 3. go on, viz. Ou soit aidant al
enemies nostre dit seigneur le roy en son royalme donant a eux ayd
ou comfort en son royalme ou per aiiliors.
I. Therefore we shall inquire what sliall be said enemies of the
king: those that raise war against the king may be of two kinds,
subjectsor foreigners: the former are not properly enemies but rebels
or traitors, the latter are those, that come properly under the name
of enemies.
This gives us occasion to consider somewhat of the nature of war
and peace.
The power of making war or peace is inter jura siimmi imperii,
and in England is lodged singly in the king,[l] tho it ever succeeds
best wlien done by parliamentary advice.
Peace is of two kinds, viz. 1. Positive or contracted. 2. Such a
peace, as is only a negation or absence of war: that peace, which I
call positive, is such as ariseth by contracts, capitulations, leagues, or
truces between princes or states, that have y«ra s7tmTni imperii, and
is of two kinds: 1. Temporary, which is properly a truce, which is a
cessation from war already begun, and then the term being elapsed
the princes or states are ipso facto in the former state of war, unless
it be protracted by new capitulations, or be otherwise provided in
the instrument or contract of the truce. 3. Perpetual, si7ie termino
or indefinite, which regularly continues according to the tenor or
conditions of the agreement, until some new war be raised between
the princes or states upon some emergent injury supposed to be done
by the one party or the other; and this is properly called a league
foidns, and makes the princes and states confoederati, and tho this
may be variously diversifiod according to the capitulations,
ri60] conditions and (jualifications of such leagues, yet they are
ordinarily of these kinds: 1. Leagues oli'ensive and defen-
sive, which oblige the [)rinces not only to mutual defense, but also to
[I] See 1 Ul. Com. 157. 1 KenCa Com. 51.
HISTORIA PLACITORUM CORONA. 160
be assisting to each other in their mihtary aggresses upon others, and
makes the enemies of one in effect the common enemies of both.
2. Defensive, but not offensive, obliging each to succour and defend
the other in cases of invasion or war by other princes. 3. Leagues
of simple amity, whereby the one contracts hot to invade, injure, or
ofiend the other, which regularly includes also liberty of mutual com-
merce and trade, and safeguard of merchants and traders in cither's
dominions, tho this may be diversified according to such contracts as
are made in such leagues; and therefore in the league between king
James of England and the king of Spain there was a tacit excep-
tion on the part of the Spaniard by the wary penning of the articles,
whereby the freedom of our trade into the western plantations of the
king oi Spain hath been supposed by the Spaniard to be restrained.
2. A peace, which is only a negation or absence of war, is that
which I call a negative peace, because it is only an absence or nega-
tion of war, there intervening no league nor articles of peace, nor yet
any denunciation of war, for it is regularly true, iibi bellum non est^
pax est, tho neither prince is under any capitulation or contract; for
there are divers princes in the world, that never capitulated one with
another, and yet there is no state of war between them ; and there-
fore the war by the Spaniards upon the Indians, tho under pretense
of religion, without any just provocation hath been held injurious
and an unjnst aggression, tho there intervened no former articles of
peace between them.
War was anliently of two kinds, helium solemne vel 7ion solemne:
a solemn war among the Romans had many circumstances attending
it,(o) and was not presently undertaken upon an injury received
without these solemn circumstances, 1. Clarigatio(()) or
demanding reparation for the injuries received. 2. That [161]
being not done there followed indiction or denunciation of
war. 3. Dilation or a space of thirty-three days before actual hos-
tility was used; but most times necessity and politic considerations
both among them and other nations did dispense with these solemni-
ties, which were found oftentimes too cumbersome and inconvenient,
especially where the delays might occasion surprizal or irreparable
damage to the commonwealth, as where the adverse party made
preparations, which, if not suddenly repressed, might prove more
dangerous and irresistible.
But these solemn denunciations of war had place only in offensive
or invasive wars, and even then had many exceptions.
1. If a war be actually between two princes or states, and a tem-
poraiy truce be made as for a year or two, that term being elapsed
they are in a state of war without any denunciation, for they are in
the former condition, wherein they were before the truce made.
(a) See the manner of it described by Dioni/s. Hal. Lib. II. Ans-el. Lib. XVI. cap. 4.
and Liv. Lib. I. § 32. whereby it appears, that the thirty-three days of dilation intervened
between the demanding; reparation and the indiction.
(i) See Plin. Lib. XXII. cap. 2.
VOL. I. — 19
161 HISTORIA PLACITORUM CORONiE.
2. In case a foreign prince in peace violate that peace and becomes
the aggressor, or invades the other, tho without any denunciation,
the prince that is upon his defense was not bound, neither was it
necessary for him to make a solemn denunciation or proclamation of
war, for this solemnity of denunciation was thought only requisite
on the part of the aggressor.
3, If after reparation of injuries sought, instead of reparation of
the former, new are committed by the adverse prince, as killing of
an embassador, contemptuous rejection &f all reparation or mediation
touching it, great provisions of hostility, or the like, there, this denun-
ciation or dilation was not requisite in the aggressor; but when all
is done, supreme princes or states take themselves to be judges of
public injuries, and of the manner, means and seasons for their repa-
rations, and what they judge safest and most for their advantage is
most commonly done in these cases, and they seldom want fair
declarations to justify themselves therein.
And therefore whether these handsome methods be ob-
r 162]] served or not, yet if de facto there be a war between princes,
they and their subjects are in a state of hostility, and they
are in the condition of enemies {hostes) to each other; but now for
the most pai^t these antient solemnities are antiquated, I come there-
fore to the practice of our own country and modern arms, and what
we may observe from our own books, history, and monuments.
We may observe in the wars we have had with foreign countries,
that they have been of two kinds, viz. special and gene-ral : special
kinds of war are that, which we usually call marque or reprisal, and
these again of two kinds, 1. Particular, granted to some particular
persons upon particular occasions to right themselves, for which vide
statute 4 H. 5. cap. 7. but this is not the proper place to treat touch-
ing it. 2. General marque or reprisal, which tho it hath the effect of
a war, yet it is not a regular war, and it differs in these two instances :
1. Regularly it is not lawful for any person by aggression to take the
ship or goods of the adverse party, unless he hath a commission from
the king, the admiral, or those that are specially appointed thereunto.
2. It doth not make the two nations in a perfect state of hostility
between tiiem, tho they mutually take one from another, as enemies,
and many times in process of time these general reprisals grow into a
very formed war: and this was the condition of the war between us
and the Dutch 22 February anno 1664. the fust beginning whereof
was l)y that act of council, which instituted only a kind of universal
reprisal, and there were particular reasons of slate for it; but in process
of time it grew into a very war, and that without any war solemnly
denounced; and therefore by the statute of 17 Car. 2. cap. 5. Dole-
nian and others, that were in Holland, were declared to have trai-
torously adhered to the king's enemies, and were attainted of treason,
unless they rendered tliemselves by a day certain, and all others, that
served the states of the united provinces during the continuance of
the war, soldiers or seamen, by sea or land, and not returning by a
time certain, were attainted of treason; and this had all the effects
niSTORIA PLACITORUM CORONA. 163
of war and hostility: the aoods of the English taken by the Dutch
and brought z;z/ra;;ra?5/r/m the property was wholly changed, and
tho retaken again, should not be restored again to the first owner,
according as iu captures by enemies, 7 E. 4. 14. 22 E. 3. 16. and
so it was practised during that war.
A general war is of two kinds: 1. Bellum solemnit^r denuntia-
ium, or helium non solemnittr de nun tia turn; the former sort of
war is, when war iS' solemnly declared or proclaimed by our king
against another prince or state ;[2] thus after the pacification be-
tween the king and the Dutch at Breda, upon new injuries done to
iVs by the Dutch the king by his printed declaration 1671. declared
war against them; and this is the most formal solemnity of a war,
that is now in use.
A war that is non solemnitcr denuntiaium is, when two nations
slip suddenly into a war without any solemnity, and this ordinarily
happeneth among us; the first Dutch war was a real war, and yet
it began barely upon general letters of marque: again, if a foreign
prince invades our coasts, or sets upon the king's navy at sea, here-
upon a real, tho not solemn war may and hath formerly arisen, and
therefore to prove a nation to be in enmity to England, or to prove
a person to be an alien enemy, there is no necessity of showing any
war proclaimed, but it may be averred, and so put upon trial by the
country, whether there was a war or not; and therefore P. 31 Eliz.
in justice Owen^s reports,(c) in an action of debt the defendant plead-
ed, that the plaintiff was an alien born in Gaunt under the obedi-
ence of the king of Spain, enemy of the queen, the plea was ruled
good, tho he shewed not, that any war was proclaimed between the
two realms; and according is the pleading 7 E. 4. 13, Rasters En-
tries, Trespass per a lien, (d)
And ni very deed there was a state of war between the crowns of
England and Spain, and the Spaniards were actual enemies, espe-
cially after the attempt of invasion in 88. by the Spanish Armadaj
and yet there was no war declared or proclaimed between the two
crowns,as appears by Camden sith anno 31.(e) ibidem p.
404. 8f ibidem p. 466. (/) so that a state of war may be f 164 3
between two kingdoms without any proclamation or indic-
tion thereof or other matter of record to prove it.
And therefore in the case in question touching treason it shall upon
the trial be inquired by the jury, whether the person, to whom the
party indicted adhered, were an enemy or not, and in order to that,
whether there were a war between the king of England and that
other prince, whereunto the party adheres, this is purely a question
of fact and triable by the jury, [3] and accordingly is the book 19
(c) Owen, 4,5. ((/) Rast. Entr. p. 605. d. 252. 6.
(e) Viz. 1588. (/; Sub anno 1592.
[2] See Anstey's Cons, of Engl. 316. Grot. L. 3. c. 3. s. 11.
[3] The fact ol the persons adhered to being enemies, may be proved b)' the produc-
tion nf tlie gnzctte containing the proclamation, if war were formally declared ; or public
notoriety is sufficient evidence of it. Fast, 219.
164 HISTORIA PLACITORUM CORONA.
E. 4. 6. and the reason is plain, because it may fall out, that tho
there were a league between the king of England and a foreign
prince, yet the war may be begun by the foreign prince ; again, sup-
pose we, that the king of England and the king of France be in
league, and no breach thereof between the two kings, yet if a subject
born of the king of France makes war upQU the king of England^
a subject of the king of England adhering to him is a traitor within
this law, and yet the Frenchinan, that made the war, is not a traitor
but an enemy, and shall be dealt with as an enemy by martial law,
if taken :[4] this was the case of the duke oi Norfolk adhering to the
lord Herise a subject of the king of Scots in amity with queen Eliza-
beth, that made an actual invasion upon England without the king's
commission. M 13 4- 14 Eliz. Co. P. C. p. l\. Camd. Eliz. sub
anno I51\,{g) 14 Eliz. p. 175. and the case of Perkin fVarbeck a.
Frenchman, 7 Co. Rep. Calvin'' s case. (A) 6 Dy. 145. a. S'her ley's
case ;{i) so that an enemy extends farther than a king or state in en-
mity, namely an alien coming into England in hostility.
II. In the next place I shall consider what shall be said a person
adhering, and also what shall be adhering.
If a foreign prince be in actual war against the king of England,
any subject of that prince under his protection is presunied to be
adhering to him, but he is not a person within this act, for
\_ 165 3 if he betaken, he shall be dealt with as an enemy, viz. he
shall be ransomed, and his goods within this realm seised to
the used of the king. When king John was devested of the duchy
of Normandy by the king of France, and thereupon the Normans
forsook the aUigeance of the king of England, which was due to
him, as duke of Norviandy , all the lands of the Normans in Eng-.
land were seised into the king's hands, and thence grew first the
escheat de terris Normannoruni mentioned prserogaliva regis{k)
cap. 12. and the style of such forfeiture was usually, quia recessit h,
sei'vitio nostra 8,- adhsesit inimicis nostris in Normannia, Clans.
6 John. m. 19. jjro Eustachia uxore Lurce fiV Johannis, Claus'.
S John. m. 5. pro JIbbate Cluniacensi: see the reason thereof before
cap. 10. they were ad fidem utriusque regis.
If there be war between the king of England and the king of
France, those Englishmen, that live in i^r««ce before the war, and
continue there after, are not* simply upon that account adherents to
the king's enemies, unless they actually assist him in his wars, or at
least refuse to return upon privy seal, or upon proclamation and
notice thereof into England; and this refusal, tho it is an evidence
of adherence, seems not to be simply in itself an adherence: this
appears plainly by the statute of Magna Chartu, cap. 30.
If a subject of a foreign princa hath lived here in England under
(g) And also snh anno X^^l'i.in principio. - (//) 7 Co. &, b.
(i) 7 Co. Calvin's case, 6. a. {k) U E.2.
[4] Judge Tucker douljts whether tliis would be treason within the Constitution ot'tlie
United Slates. 4 Tuck. Bl. Com. Apdx. 33.
HISTORIA PLACITORUM CORONA. 165
the protection of the Idng of England, and so continues after a war
proclaimed, and partakes of all the l)enefits of a suhject, and yet
secretly practiseth witli the king of France, and assists him before
he hath left this kinsdom, or openly renounced his subjection to the
crown o( England, i\\\s man seems to be an adherent within this
act, and commits treason thereby :[5] tamen qusere, vide Dy. 144. a
SAeriei/'s case ; and the like law seems to be of an enemy coming
hither and staying here under the king's letters of safe conduct:
qusere, vide statute 18 H. 6. cap. 4. 20 H. 6. cap. 1.
If there be a war between the king of England and France, and
then a temporary truce is made, and within the time of that truce
an Englishman goes into France, and stays there and re-
turns before the truce is expired, this is not an adherence to [ 166 J
an enemy within this statute, Clans. 7 E. 3. part 1. m. 9.
pro Johanne Poynter, who had an amoveas manus cum exitibus,
his lauds having been seised for that cause: but this record implies,
that if during his stay (it was in Scotland) he had confederated or
conspired with the enemy or assisted them in order to their further
hostility, this might have been an adherence: 7iota, the reason,
" Quia prsedictus Johannes tempore treugarum inter patrem nos-
trum Ss' Robertum de Bruys ivil in Scotiam per prxceptum Andreas
de Harcla ad pictandum qnandam imaginem, quo tempore bene
licuit unicuique de Anglia intrare in Scotiam per licentiam <§•
literas de conductu custodis Marchiae, 4* quod idem Johannes
habuit tales literas Andreas de Harcla, 4' ibidern talith^ vioram,
fecit per unum annum, absque eo, quud aliquo tempore Scotis prse-
dictis fuit adhserens, <§• quod idem Johannes rediit in Angliam
durantibus treugis prcedictis, Si' semper hactenus fuit ad pacem
nostram (§• patris nostri.'' Nota, this ifliidrew Harcla having been
created earl of Carlisle was by an extrajudicial military sentence
first degraded, and then had judgment of high treason given against
him. H. \S E. 2. Rot. 34 in dor so rex.
If the king of England and the king of France be in
amity, yet if a subject of the king of England solicits by [] 167 ]
letters the king of France to invade this realm, this is high
treason : it was the case of cardinal Poole, who wrote a book to that
purpose to Charles the emperor. Co. P. C. p. 14. It is certainly an
overt-act to prove treason in compassing the king's death, but it
seems not an overt-act to convict him of adhering to the king's
enemies, for at the time of this act done the emperor was not an
enemy. Co. P. C. p. 14.
If an Englishman during war between the king of England and
France be taken by the French, and there swear fealty to the king of
France, \{'\i be done voluntarily, it is adhering to the king's enemies;
but if it be done for fear of his life, and that he returns, as soon as
he might, to the alligeance of the crown oi England, this is
not an adherence to the king's enemies within this act. [ 168 ^
Claus. 7 E. 2,. part 1. m. 15. John Culwin's land being
[5] R. V. De la MoUe, 21 St. Tr. G87.
168 HISTORIA PLACITORUM CORONA.
seised upon this account there was ouster le main cum exitibus, "Quia
compertum est per inquisirionem, &c. quod Johannes ad fidetn &
pacem nostram extitit, qiiod-que idem Johannes captus i'uit de guerra
per Scotos inimicos noslros, & in prisona in Scotici per dictos inimi-
cos nostros, & pro vita sua salvanda ad fidem dictornm Scotorum per
dimidiimi annum extitit, quodque idem Johannes ^^osiedi in Jingliam,
rediit, & ad fidem & pacem nostram a tempore prsedicto hactenus
extitit ;" tho this was before "^S E. 3. yet the instance is useful, be-
cause adhering to the king's enemies was then treason.
If a captain or other officer, that hath the custody of any of the
king's castles or garrisons, shall treacherously by combination with
the king's enemies, or by bribery or for reward deliver them up, this
is adherence to the king's enemies. This was the case of William
TVeston for delivering up the castle of Oughtreivicke, and John de
Gomeneys for delivering up the castle oi Jirdes in France, hoih
which were impeached by the commons, and had judgment of the
lords in parliament, Rot. Par. 1 R. 2. n. 40. namely William Wes-
ton to be drawn and hanged, but execution was respited, que le roy
n^est uncore enforme del manner de cest judgement : Gomeney^ s
judgment was thus, Les seigneurs in plein parlement vous adjudgent
a la mort, & pur ceo qu'estes gentlchome & banneret & aves serve le
aiel le roy en ses guerres, & n'estes lige home nostre seigneur le roy,
vous seres decoUe sans autre justyce auer, but execution was re-
spited.(m)
And note, tho the charge were treason, and possibly the proofs
might probably amoimt to it, and Walsingham sub anno 1 R. 2.
tells us it was done by treason ; yet the reason expressed in the
judgment against Weston is only, que surrendists le dit castle de
Oughtrewicke al enemies nostre seigneur le roy avant dits sans nul
duresse ou defalt de victualls contre vous ligeance & emprise : and
the like reason is exprest in the judgment against Gomeneys, Vous
emprists a sauement garder sans les surrendy a nully, &c.
[ 169 ] & ore vous Johan sans nul duresce ou defalt de victuals ou
de artillery ou autres choses necessaries pur le defence de
dits ville & castle de t/irde sans commandment nostre seigneur le roy
malement I'auets delivers & surrendres al enemies nostre seigneur le
roy per vostre defalt demesne contre tout plain de droit & reason, &
encountre vostre emprises suisdits, &c.
The truth is, if it were delivered up by bribery or treachery, it
might be treason, but if delivered up upon cowardice or imprudence
wiil)out any treachery, tho it were an oifense against the laws of
war, and the party subject to a sentence of death by martial law, as
it once happened in a case of the like nature in the late -times of
trouble, (n) yet it is not treason by the common law, unless it was
done by treachery; but tho this sentence was given in terrorem, yet
it was not executed : it seems to be a kind of military sentence, tho'
(m) See tlicse cases Stale Tr. Vol. I. f. 7!).').
(n) This was the case of Col. Fienncs, parliament g'overnor of Bristol for cowardly
surrendering the same to the king's forces. Sue Slate Tr. Vol. I. p. 745.
HISTORIA PLACITORUM CORONA. 169
given in parliament, like unto that of the baron Graystock governor
o( Berivick,{o) who travelled into France without the king's com-
mandment, and left the care of, the garrison to Robert de Ogle a
valiant knight, who used all imaginable courage in defense thereof,
but it was lost in the absence of the baron of Graystock, who was
thereupon sentenced to death, because Ite had undertaken that charge,
and yet went from it without the king's command, and in his absence
it was lost : this also seems rather a sentence of council of war, than
a judgment of high treason; and thus far touching the treason of
adhering to the king's enemies within the land and without.
Touching the trial of foreign treason, viz. adhering to the king's
enemies, as also for compassing the king's death without the king-
dom at this day, the statutes of 35 H. 8. cap. 2. hath sufficiently pro-
vided for n.(p.) P. 13. Eh'z. Dyer, 298, 300. Story's case;
but at common law he might have been indicted in any [ 170 ]
county of Englatid, and especially where the offender's
lands lie, if he have any. 5 B. 2. Trial 54.
And it seems, if the adhering to the king's enemies were upon the
narrow seas, this is an adherence to the king's enemies within the
realm, and tho it be triable by a special commission at this day-
grounded upon the statute of 28 H. 8. yet at common law it might
have been indicted and tried in any adjacent county by a special
commission of oyer and terminer, for the narrow seas are within the
king's alligeance, and part of the realm of England. 6 R. 3. Protec-
tion AQ. Co. Lit. 260. [6]
(o) See this case State Tr. Vol. I. p. 797.
(p) Tliis statute gives power to try such treasons in the king's bench or by commis-
sioners in any county appointed by the commission, and continues in force notwithstand-
ing 1^-2 Fh. Sf Mnr. cap. 10. which reduces the methods of trial for treason to the
course of the common law, because it is not introduclive of a new law, but only settles a
point, that was before doubtful at common law ; and it was accordingly so resolved ia
Storie''s case, Dyer 298. b. Co. F. C. p. 24.
[6] The following have been laid down as overt acts of adhering to the king's enemies.
Every assistance given by the king's subjects to his enemies, unless gi,ven from a well
grounded apprehension of immediate death in case of a refusal, Fost. 216. Hav;k. c. 17.
s.^28;-to join the king's enemies in acts of hostility against his allies. Fust. 210. R. v.
r aughan, Salk.G35 ; to join tlie enemy's forces, although no acts of hostility be committed
by them either against the king or his allies, Fos«. 218. Salk. 634. 5 St. Tr. 17 ; to raise
troops for the enemy, R. v. Harding. 2 Ventr. 316 ; to deliver up the king's castles, forts,
or ships of war to the enemy through treachery, or in combination with them, Fost. 219.
3 Inst. 10. ante, 168; to detain the king's castles, &c. if done in confederacy with the
enemy, Fosi. 219; to send money, arms, intelligence, or the like, to the king's enemies,
rost. 217, although such money, intelligence, t^c. be intercepted and never reach them.
R. v. Gt€gg,-10 St. Tr. Appdx. 77. Fost. 198. 217. R. v. Hensey, Burr. 642. R. v. Lord
Frrston, 4 St. Tr. 45.5. R. v. Stone, 6 T. R. 527.
Lvcry species of aid and comfort, in the words of the statute, which when given to a
rebel within the realm, would make the person gUilty of levying war, if given to an ene-
my, whether within or without the realm, will make the party guilty of adhering to the
king's enemies. 1 East, P. C. 78. Refusing personal assistance to the king, eitiicr against
rebels or an invading enemy, is not an adherence within the statute, though a high mis-
demeanor. 1 East, P. C. 8U. Continuing in an enemy's country, not of itself an adhe-
rence; unless the party voluntarily swears fealty to the enemy, or actually assists them
170 HISTORIA PLACITORUM CORONA.
in the war, or unless he refuses to return home upon privy seal, or proclamation, or notice
thereof; tiiough Sucti refusal is only evidence of an adhering. 1 East, P, C. 81. It is no
treas^on to relieve a rebel out of the realm, id. 11.
The words '' adhering to their enemies, giving them aid and comfort," in the Constitu-
tion of tlie United States, having been taken from the 25 Edw. 3. must receive, it is con.
ceived, the same constructioa which is given to them in that statute. 2 Burros Tr. 402.
In 1778 and 1781, tiicre were trials for treason in Pennsylvania,\\\ adhering to the ene-
mies of the State and of the United States. 1 Dall. 33. 89. 2 id. 86. The United Stales v.
Pryor, 3 W. C. C. R. 234, and The People v, lyynch et al. 11 Johns. 549, are the only two
cases tiiat have happened, since tiie framing of the Constitution, of tliis species of treason.
The former was an indictment for treason in adhering to "the enemy, charging the'
defendant, amongst other things, with going from the British squadron to the State cf
.Delaware, with intention to procure provisions for the squadron. It was held that the
going from the squadron to the shore for the purpose of peaceably procuring provisions
for the enemy, did not amount to an act of treason ; as this act rested in intention only,
vviiich is not punishable by our laws. Aliler, if a person has carried provisions towards
the enemy, with intent to supply him, though that intention should be defeated. If the
intention of the defendant had been to procure provisions for the enemy, by uniting with
him in hostilities against the citizens of the United States, his progressing towards the
shore would have heen an overt aqt of adhering to the enemy, though no other act was
committed. In The People v. Lynch, the defendants were acquitted, on the ground that
the offence of adhering and giving aid and comfort to the public enemies of the United
States, is not treason against the people of the State of New York. See 4 Tucker's Bl.
Com, Apdx. 32.
CHAPTER XVI. ^
CONCERNING TREASON IN COUNTERFEITING THE GREAT SEAL OR
PRIVV SEAL.
First, I shall upon this article consider how the common law stood
before this statute, and what kind of offense this was antiently. and
how punished. Seco)idly, I shaU consider how the law hath been
taken touching this otfense since the statute, and how punished.
I. ThQ great seal of England is the great instrument,'whereby
the king dispenseth the great acts of his government and the adminis-^
tration of justice ; under this seal the great commissions to his
justices and others are passed ; original writs and mandates, and
those processes that issue out of chancery, all the king's grants and
charters of lands, liberties, franchises, honours, pardons are passed
under this seal.[l]
There is or should be always a tnemorandum made upoil
[ 171 ] the close rolls of the breaking of the old seal and making
and delivering of the new; and by the very delivery of this
seal the oilice of keeper of the great seal is constituted, and most
ordinarily is to the same person, that is lord chancellor: sometimes
the custody of the great seal is in one person, and the office of Idrd
chancellor in another; but always a memorandum of the delivery
thereof entered upon the close rolls. The great seal consists ordina-
rily of two impressions, the one the very great seal itself with the
[1] 2 Bl Com. 305. 346.
HISTQRIA PLACITORUM CORONA.. 171
king's effigies instamped on it, the other is commonly called pes
sigilli, and sometimes in our old books called k large, which is the
impression of the king's arms in the figure of a target, which is used
in matters of smaller moment as certificates, which are usually-
pleaded sub pede sigilli.
Antiently, when the king travelled into Normandy, France, or
other foreign kingdoms upon occasion of war or the Hke, there were
two great "seals, one went along with the king, the other was left
with the ctistos regni, or sometimes with the chancellor, if he went
not along with the king, for the dispatch of the affairs of the king-
dom, and then the king upon his return sometimes redelivered the
old seal and took in the new, Clans. 20 E. 3. part 2. m. 26. dors.
Clans. 19 E. 3. part 2. m. 23 4- 10. dors. Claus. 20 E. 2,. part 2.
m. IS. dors. Sf'frequentissime alibi in dorse clausorum.
The privy seal is ordinarily a warrant for the passing of things
under the great seal, sometimes a warrant to issue treasure, to make
allowances, &c. vide 11 Co. Rep. 92. the earl of Devonshire's case;
and this seahis ordinarily in the custody of the lord keeper of the
privy seal or commissioners thereunto appointed.
Besides these seals of greater moment there are other seals of the
king, as the privy signet, [2^ the particular seals of the several courts,
that of the king^s bench and common pleas in custody of the chief
justices of either court, or their clerks appointed for that purpose, the
seal of the exchequer in the custody of the chancellor of the exche-
quer, the seal of the duchy of Lancaster in the custody of
the chancellor of the duchy, the seal of the county palatine [ 172 j]
of Lancaster in the custody of the chancellor of the county-
palatine, which are sometimes in the same person, the seals of county
palatine of Chester, of the several justices of assise, oyer and terminer
and gaol-delivery, the king's seal of statutes and recognizances, the
seal of the cocket ; and for the most part these seals are delivered by
the king's order signified sometimes by his privy signet, sometimes
by his secretaries, but antiently the most of them were delivered by
the king in person to the several persons, that had the custody there-
of, and a viemorandum made thereof upon the back of the close
roll. Claus. 43. E. 3. m. IS. dors.
The antient manner of delivery of the seal for statutes merchant,
and probably for other seals of like nature was by the king in per-
son as before, or by a close writ and memorandum under the great
seal., T. \% E. \. it is commanded, that for the future it should be
delivered under the seal of the chancellor of the exchequer.
The manner antiently of delivering the judicial seals of the king's
bench and common pleas was by the king or chancellor to the chief
justices respectively, and in like manner the judicial seal of the ex-
chequer to the chancellor of the exchequer ; these were ordinarily
[2] For the nature of the signet and privy seals, see the case Re KicktW Patent,
1 riiiU. Ch. Rep. 36.
VOL. 1.-^20
172 HISTORIA PLACITORUM CORONiE.
ill two pieces, Claus. 43 E. 3. m. 18. dors. The profits of the seals
belonged to the king, except the seventh penny, which is the fee ,of
either chief justice ;(a) and when the king farmed out the profits of
the seal of either court, sometimes one piece remained with
[173] the chief justice or his deputy, the other piece remained
with the farmer or his deputy: these profits of the seals of
the courts of the king's bencli and common pleas were let for 1000/.
per a?imwi{b) by the king. M. 18 E. 3. EoL 35. Eex. P. 20 E. 3.
Eut. 87. T. 22 E. 3. Eat. 115. M. 23 E. 3. EoL 31. coram rege.{c)
(a) The antient fee to the cliief justice was one penny for every writ, as appears from
two of the records here quoted by our author, viz. 20 E. 3. Rot. 87. 22 E. 3. Rot. 115.
tlie first of these is a grant to Walter of Yarmouth of the profits of the seals for ten
years, in consideration tliat the said Walter should pay to the clerk of the hanaper for the
king's use 250 marcs every year, and should likewise discharge a debt of the king's of
2000Z. by the yearly payment of 200Z. the said Walter to be allowed every year cent
solcls for his expenses in sealing writs; all writs ad sectam regis, Sfc. to pay no fees, Et
que les justices preignent »« denier dii brief per lour sealx en manere come ad este use
en temps passe.
Tlie latter is a grant of the king (upon his having resumed the seals on account of
some misdemeanor committed by Walter of Yannouih) to John de Padebury and Henry
de SulihuU, reddendo inde regi de claro per annum ducentas & quater viginli marcas
per manus clerici hanaperii, writs ad sectam regis, &c. to pay no tees, & quod justitiarii
nostri in placeis illis percipiant iiniim denarium de breyi pro sigillis suis, prout ibidem
hactenus est usitatum: it should seem therefore, as if the person employed by our author
to consult the record mistook the word vn in the first grant for a numeral vii, and that
this was the occasion of his making the seventh penny to be the fee of the cliief justice.
(//) These profits were not let for above tliree or four hundred pounds per annum, as
appears not only from tlie above-mentioned cases, (the highest of which is 200/. and 250
ma.rks per annum, which is no more than 366/. 13s. 4^/.) but also from the 18 E. 3. Rot,
35. where the king signifies by writ 20 Oclob. to his justices, that he had granted to
Matthew Canaceon and his assigns toturii proficuum ad se de sigillis omnium breviurn
judicialium de banco suo & banco communi exeuntium pcrtinens, usque ad terininum
decern annorum, in valorem trescentarum librarum per annum, de quibus ipsi solvent ad
opus regis custodi hanaperii cancellaria; quolibet dictorum decern annorum centum libras
de exilibus breviurn prsedictorum, tfc rescrvabunt penes se totum proficuum residuum de ■
brevibus supradictis durante dicto termino in recompcnsalionem decern [duo] milliurtf
librarum stcrlingorum, de quibus prfedictus Matlheus in debitis, in quibus rex certis per^
sonis in ducatu Aquitanie tenebatur, assumpsit rcgem acquictare & exonerare ; ita
semper quod brevia ad sectam & pro cominodo regis per visum & testimonium illorum,
qui pro rege prosequu*tur ac brevia pro hominibus de curiis regis, &, pauperibus homi-
nibus facta Si faeienda absque aliquo inde solvendo dcliberentur, prout hactenus in can-
cellaria fieri consuevit. Et sciendum quod eodem 20 die Oclob. Rohcitus de Sadyug-
ton Cancellar' domini regis liberavil Willielino Scot [capitali justitiario] apud Westm^
quoddarn sigilluin domini regis pro brevibus prajdictis in banco domini regis sigillandis,
cnjus nnam i);irlcm idem Wiliielutus Scot liberavit cuidam Rogero dc Merlawe, deputato
dicti Mattlici Cuuaceon jurato, aliani vcio partem ejusdem sigilli penes so ipsum reti-
nendo ; Et dictum est eidem Rogero, quod ollicio prscdieto l)cnc & fiilcliter intendat
secundum formam & conditioneni in brevi pra;dicto contentas pericqlo quod incuinbit, &-C.
Allho the consideration is here said to be the discharging of a debt of ten thousand
pounds, (which probably led our author to tliink the jjrofits were let at lOOOl. per annum,
so that in ten years time that debt might be discharged) yet the annual produce of tlie
seals being no more than 300/. one hundred ^hereof was to be paid yearly for the king's
use, it seems to me [iretty plain, that the king's debt, which he undertook to ])ay, conid
be only two and not ten thousand pounds ; what strengtlicus this observation is, that tlii?
indentures of agreement being in French, it was very easy to mistake deux for dix.
(r) This was a grant of the seals of the king's bench and common pleas to Anthony
Buclie for seven years in recouipensationem se/ilingentarum marcarum (due to him on an
annuity formerly granted) at the rate of 200/. jxr annum for the two first years of the
said term, and 200 marks per annum for the five remaining years, the said Anthony to
HISTORIA PLACITORUM CORONA. 173
Many times the justices issued process under their own seals unto
the sheriffs : this was complained of inter petittiones par-
liamenti 12 E. 3. n. 6. by the chancellor of the exchequer [ 174 3
and clerk of the hanaper, as a derogation to the king's profit,
and contrary to the duty of the sheriff, who, by his oath, is bound to
receive no writs, bat under the king's seal; the answer is, Soit briefe
mand' a justic' de common banc contenarit I'effect de petition, &
quils pur lour advisement facent tiel remedy en lour place, come ils
verront, qe soit a faire a profit du roy.
And it seems most usual, that since that time judicial process not
only in those greater courts, but in most other courts issued under
the king's seals thereunto deputed, yet justices of assise and gaol-
delivery sometimes -make their precaff)ts under their own seals: vide
Judicial Register, 34, 35, 41, 43, 73, 84. vide pur ceo Rot. Pari.
25 E. 3. 71. 25. a petition that judicial process out of the king's bench
and common pleas might issue under the seal of the chief justices,
as is used in eyre, assises, <5' oyer 8^' terminer, but denied.
But to return to the business of the great and privy seal.
The great seal which Matthew Paris{d) sub anno 1250. well
calls {clavis regni) hath been with great care and solemnity kept and
used, and therefore antiently, when there was any change made of
the great seal, there was not only a viemarandum made thereof //i
dorso chiusortim cancellarise, and a public notification thereof in the
court of chancery, but public proclamation was made thereof. Claus.
1 E. 3. part 2 m. 11. dorso.
Yet in cases of speed and necessity, and sometimes for distinc-
tion's sake the king used a private seal for such occasions, which
were to be passed under the great seal.
King John died, his son king Henry III. being but about ten years
old, from the beginning of his reign until 3 H. 3. all grants passed
Under the seal of the earl marshal, that was his protector or guardian,
but in the king's name, viz. In cujus rei testimonium has literas
nostras sigillo comitis mariscalli rectoris nostri & regni nostri sigil-
latas, quia nondum sigillum habuiraus, vobis mittimus, teste Wil-'
lie/mo comite mariscallo. This seal he continued till the third year
of his reign, Claus. 3 H. 3. m. 14. hie incepit sigillum
regis currere: and in the same third year, viz. Fat. 3 U. [ 175 J
3. m. 6. there was a provision made in parliament for the
discrimination of thosg charters, that passed during his minority and
after his full age, in these words: Henricus dei gratia, S^-c. Sciatis
quod provisum est per commune consilium regni nostri, quod nullce
carta, nulla} literae patentes de confirmatione, alienatione, venditione
vel donatione, seu de aliqua re, quse cedere possit in perpetuitatem,
sigillcntur magno sigillo nostro usque ad astatemnostramcompletam.
Teste, 4'c." and after the setting down of divers witnesses are these
pay to tlie clerk of the hanaper for the king's use one [two] hundred marks per annum
for the two first years, and one hundred marks per annum for the five remaining years;
and the king tliereupon sends his writ de admittendo praedictum Antonium vel ejus
attorn' ad oliicium prffidiclutn modo debito faciendum; and he was admitted accordingly.
(</)/). 783.
]75 HISTORIA PLACITORUM CORONA.
words, " Provisum est etiam per commune consilium regni nostri &
coram omnibus praedictis, quod si aliqute cartse velaliqufe literse paten-
tes factae secundum aliquam pi'Ecdictarum formarum sigillata3 iuvenian-
tur praidicto sigiilo, irritee habeantur & inanes, festibus praedictis."
It appears Clause 20. E. 2. m. 3. dor-'i. in tlie beginning of that
miserable tragedy, that the 26th of October 20 E. 3. the king flying
from his wife and son, who was afterwards king, a great number of
lords and others chose Edward the king's eldest son to be custom
regni, supposing the king to be out of the kingdom; at that time the
chancellor, together with the great seal were with the king, and the
new custos regni ea, qua3 juris fuerent, sub sigiilo suo privato in cus-
todia Aom\m Robert i de JVyvill c\ex'\Q.\ sui existent', eo quod aliud
sigillum pro dicto regimine ad tunc non habuit,exercere incepit post-
modum vero 20 die Novcmb. proxime sequent', captis inimicis prse-
dictis & dicto rege in regmim revertente, upon a messuage sent to the
king for the seal the king thereupon sent t)ie great seal to his wife
and son, ut non solum ea, qua; pro jure & pace essent facienda, sed
etiam qua3 gratise forent, fieri facerent; the seal was brought to them
2Q Novemb. and the morrow being the feast of St. Andrew it was
opened by the queen and her son, and delivered to the bishop of
Norwic/i: and it is to be observed, that a parliament was summoned
between the 26th of October and the 26th of November in the name
of the king, but to be held before the queen and the cnstos regni in
gtiindena sctJicti Jindrese, which summons must needs be
\_ 176 ] under his own private seal ; but the 3d of Becember the
great seal being then in their power it was prorogued unto
the morrow oi Epiphany: the first summons is recited in tJie writ
oi prorogation, but it is not entered of record, for it was a hasty con-
fused business, neither had the rolls of the chancery in their hands to
make any entry of it; and if they had had them, yet it would have
been irregular, and not have amended the matter: all that I shall
farther add concerning these two instances is, that neither the.seat
of William earl Marshal used by Henry III. nor the private se^l
of prince Edward were great seals within this statute, whereof the
counterfeiting might be high treason.
When the king dies, tho the office of keeper of the great seal
expires, as well as all commissions to sheriffs and justices, yet the
great seal of the last king continues the great seal of England, till
another be made and delivered.
King Edward III. began his reign the 25th o{ January, he made
the bishop of Ely his chancellor the 2Sth o( January, it was not pos-
sible a new seal could be made in tliat time, and besides the seal was
not altered till the 3d of October eodem anno, as appears by the pro-
clamation thereof, Claii.%. 1. E. 3. part 2. m,. 1 1. dors, so that all that
■while the old seal with the old inscription stood ; the method of which
alteration was thus: The king by his proclamation bearing iestt
3 Octob. anno 1. directed to all the chief sheriffs of England,s[gmfyr
ing, that he had made a new great seal, and that it was to take place
from the fourth day of that month of October, sends them the impres-
sion of the new seal in wax, commands them to publish it, and that
HISTORIA PLACITORUM CORONA. 176
after the fourth day of October they should give faith to it, and receive
no writs but under the new seal after .that day.
The fourth day of October being Simday the bishop o{ Ely chan-
cellor produceth the ne\y seal, declares the king's pleasure, that it
should be from thenceforth used ; the Monday after the old seal is
broke, prxcipiente rege, and the pieces delivered to the Spigurnel.(f)
Again, king Henry V. died 30 ^Ingusti anno sui c/ecimo,
a parliament was summoned by writ bearing teste 29 Sep- [ 177 3
temb. anno prinio H. 6, to be held die lunx ante festnm
Martini, a commission issued to the duke of Gloucester bearing
teste 6 Novemb. 1 H. 6. ad inchoanduni parliamentiim, 4-c. and the
bishop of Durham chancellor to Henry V, delivered up the seal to
the king 28 Septemb. The new seal with the new inscription was
in that parliament ordered to be made, the bishop of Dur/iam was
made chancellor by commission underthe great seal dated 16 Novemb.
the new seal was not made till some time after, therefore the old seal
of Henry V. was used in the summons of the parliament and all the
transactions till the new seal was delivered: indeed when Edward
IV. assumed the crown, the seal of Henry VI. was not used, for it
could not be had, and if it could, yet Henry VI. being declared an
usurper, there was no reason {ov Edward IV. to give any counte-
nance to that usurpation by using of his seal, who was declared an
usurper and attainted of treason. [3]
So that (except the last case of an usurper) till a new great seal be
made, the old seal, being delivered to the keeper and used and em-
ployed as the great seal, is the great seal of Englancl within this
statute, notwithstanding the variance in the \x\scn\){'\on, port rait lire,
and other substantials from the state of the present governor.
But then, what shall we say of the old seal, when the new seal is
made and delivered of record to the keeper, and the old seal broken?
To this I say, 1. It was once the great seal of England, and there-
fore the counterfeiting of that seal and applying it to an instrument
of that date, wherein the old seal stood, or to an instrument without
date, is high treason; nay, if in the time of Edward IV. a man should
counterfeit the great seal of Henry VI. and apply it to a patent or
other instrument of his time, it had been high treason, tho Henry VI.
were an usurper, and his seal in the time of Edward IV. of no value.
9i?.4.(/)
But what if in the case before instanced in, after the 4th
of October 1 £. 3. a man had forged a grant by king Ed- [ 178]
ward Ill.(^) bearing teste 2 E. 3. when the old seal was out
(c) 'The'Spigurnel was an officer, whose place was to seal the king's writs. Camhd.
Remains, p. 13fi.
(/) This is BagoVs case, 9 iJ. 4. 1 b. where it is said by the counsel, " That a m;in
shall be arraigned in the time of E. 4. for treason done against H. 6, in compassing his
death, .t'c."
ig) This must be understood under the old seal.
[3] For an accourit of the difficulties the parliament got into, when Lord Keeper Lit.
tlelon carried oft' the great seal to the king at York, see 3 vol. Lord CampbeWs Lives of
the Chancellors, p. 1. et seq^; 2 Hallam's Cons. His. 222.
178 HISTORIA PLACITORUM CORONA.
of date, or in the time of Edward W . had forged a grant by Edward
IV. and counterfeited the seal of Henry VI. thereunto ; this seems
not to be a counterfeiting of "the great seal o( England, if the differ-
ence appear very legible and conspicuous, for at the time, whereunto
it rehites, there was no such great seal in being; but if the difference
between the seals be such as be not evident to the view of every
man's eye, it may be more doubtful ; sed vide de hoc infra.
Thi,s statute speaks only of the great seal, and privy seal, and
therefore no other seals were within this statute.
But by the statute of 1 Mar. sess. 2 cap. 6. " If any do falsely
forge or counterfeit the queen's sign manual, privy signet or privy
seal, every such offense shall be high treason, and the offenders
herein, their counsellors, procurers, aiders and abettors being convict
according to the course of law shall be adjudged traitors against the
queen, her heirs and successors." But now what shall be said con-
cerning these other seals above-mentioned, as the seals for the writs
of the courts of king's bench, common pleas, and exchequer, the seal
for statute-merchant, &c.
By the old law, it seems that counterfeiting any of the king's seals,
wherewith writs were sealed, was petit treason, tho it came under
the name of crimen falsi. •Glanvil, ih^i wrote in Henry II. 's time,
Lib. XIV. cff/7. 7v " Distinguendum est, utrum fuit carta regia an
privata, quia si carta regia, tunc i^. qui super hoc convincatur (scili-
cet de falsificatione) condemnandus est tanquam de crimine Isesas
majestatis ; si vero fuerit carta privata, tunc cum convicto mitius
agendum es]^ sicut in ceteris minoribus criminibus falsi, in quorum
judiciis consistit eorum condemnatio in membrorum solummodo
amissione, pro regia tamen voluntate." Bracton, that wrote in the
time of Henry III. Lib. III. cap. 3. de crimine Ixsse majestatis, § 2.
"Est & aliud genus criminis ra3S3e majestatis, quod inter gra-
r 179 1 viora numeratur, quia ultimum inducitsupplicium & mortis
occasionem, scilicet crimen falsi in quadam sui specie & quod
tangit coronam ipsius regis, ut si aliquis accusatus fuerit vel convict us,
quod sigillum domini regis falsaverit consignando inde cartas vel
brevia, vel si cartas confecerit & brevia&signa apposuerit adulterina,
quo casu si quis inde inveniatur culpabilis vel seisitus, sivvarrantum
non habuerit, pro voluntate regis judicium sustinebit, &, si warran-
tum halnierit & warrantizaverit, liberabitur & tenebitur warrantus:"
Ftfta, that wrote in the time of E. 1. Lib. I. cap. 22. de crimine
falsi, tells us, "■ Crimen falsi dicitur, cum quis accusatus fuerit, quod
sigillum regis, veil appellatus, quod sigillum domini sui, de cujns
familia fuerit, falsaverit & brevia inde consignaverit, vel cartam ali-
quam vel literani ad exha^redationem domini vel alterius damnum
sic sigillaverit,.in quibus casibus si quis inde convictus fuerit, detrac-
tari meruit & suspendi. § 3. Item crimen falsi dicitur, cum quis
illiritus, cui non fucirit ad hoc data authoritas,_ de sigillo regis rapto
vel invento brevia cartasve consignaverit :" Brilton, that wrote in
the time also of E. 1. cap. 4. " Soit inquise de touts ceux, qui ascun'
fausin averont fait a nostre scale, come de ceux qui pet engin ont
I
HISTORIA PLACITORUM CORONA. 179
nostre seale pendu a ascun charter sauns conge, ou que nostra
seale ount emble ou robbe, ou autrement troue eient ensele brefs
sauns autre auctorite, and cap. '8. Graund tresou est a fauser nostre
seal &c." . '
Upon these old books there is no difference made touching the
king's seals, but generally the crime of treason was supposed in coun-
terleiting any of them, but most certainly the statute of 25 E. 3.
extends only to the great and privy seal, as to the point of treason;
but then whether that, which was a treason before, remain not still a
felony at the common law (for all treasons include felony. 3 H. 7. 10.
Co. P. C.p. 15.) is considerable.
M. 2. H. 4. B. R. Rot. 2. as I take it, Visum est curiae, quod con-
trafactio sigilli regis pro recognitionibus non est nisi felonia:(A) but
iho they held it not treason, they do not positively affirm it
felony since the statute of of 25 E. 3. but only iion est nisi [ 180 ]
felonia, viz. that at most it can be only felony.
P. 6 E. 2. B. Rot. 2. Essex. Johannes de Bosco per cur' est culpa-
bilis pro falsilate, eo, quod cepit cultellum suum & calefaciebat eura
apud ignem & aperuit breve regis & imposuit aliud fictum, dicit quod
est clericus, & traditur ordinario lVestm\{i) Simile P. IS E. 2 B. R.
Rot. 25 Rex\k)
(li) There is no such entry to be found either on the second or seventh roll of the plea
or crown-roll of that term, but the words cited by our author are in tlic abstract of the
rolls of the king's bench of Mich. 2 H. 4., Rut. 7. but upon what authority is uncertain,
being in a ditferent and more modern hand than that of Mr. Agard, who in the reign of
Jamis I. abbreviated the king's bench rolls.
(i) The record of this case is thus, '■'■John de Bosco was arraigned pro falsitate sigilli «&
brevis domini regis, eo quod ivit cum brevi [de cancellaria] ad ignem & calefaciebat cul-
tellum, & cum illo cultello ceram dicti brevis findebat, and amoto illo brevi imposuit aiiud
breve [this was a Supersedeas to the sheriff of Essex] & illud in eadem cera inclusit & tra- ■
didit ^ervienti sno illud breve vicecomiti Essex deferendum, qui quidem serviens in prse-
seutia pr!EdictiJ(;/(« n/i!S dc Bosco liberavit eidem vicecomiti falsum breve prtedictum : Dicit
quod clericus est:" upon which he tvas claimed by the abbot of Westminster his ordi-
nary ; " Sed ut sciatur pro quali eidem ordinario liberari debeat," a jury ex officio pass
upon him, who find him guilty " de prsedicta falsitate, findendo cum cultello suo prtedicto
ceram prEdictam &- imponendo falsum breve prsEdictum, sicut ci superius imponiiur:
Ideo inde ad judicium, &c. & interim committitur maresch', Sfc." There is no judg-
ment entered upon the roll; so that from this record, which is not in usual form, it is
doubtful whether he had his clergy or not, tho from a jury passing upon him ex officio it
is most probable he had; but yet it should seem from the case of Geoffrey de Huntijnton
S( Richard de Clijntbn, which was but six years afterwards, as if this offense was not so
much as felony; they were charged " pro contrafactione sigilli regis & cartre sub sigillo
regis sic conlrafacto," which was found in their custody; afterwards they plead the
king's pardon •" pro omnibus feloniis & transgressionibus, &, quia inspecta carta proedicta,
qu(E dicitur esse contrafacta, compertum est quod carta non est de forma in cancellaria
regis usilata, in?pceta etiam cera ejusdem cartsE suspectJE compertum est, quod cera ilia
impressa est sigillo regis cancellar', sed prius apposita fuit cuidam alteri literse regi?
|)ateiiti, quod ciliiis did potest transgressio, quam contrafactio. Et dominus rex per-
doiiavileis sectam pacis sua>, quae ad ipsum pertinet, de onmimodis feloniis & transgres-
sionibus, iStc. jam per tres annos in prisona regis steterint oceasione pra?dicta &, non
aHa causa, dictum est quod deliberet cos, &c. &. ipsi cant inde quieti, &e. Et carta
illacanoollutur in cur." Mirh. 11 E.2 B. R. Rot. 156. Heref. from hence it appears that
the judgment alterwards in Leake's case 4 Jac. 1. was agreeable to the antient resolu-
tions.
{k) This is the case of Philip Burden, but is by no means similar to that of John de
Bosco, ioi this was a direct actual counterfeiting of the great seal: vide infra in notis.
181 HISTORIA PLACITORUM CORONA.
It appears not, whether it were a writ under the great seal
r 181 ] or a judicial writ of some court, but whether it were the one
or the other, it seems to be capital, for he had the benefit
of clergy, which in those times was allowable in some cases of trea-
son ; so that it seems a counterfeiting of any of the king's seals was
felony at common law, but whether it so continues, notwithstanding
the statute of 25 E. 3. hath degraded jt from treason, unless it be the
great Or privy seal, shall be farther examined.
II. Having thus considered the seals, it remains to consider what
shall be said a counterfeiting of the great or privy seal. [4]
A conspiracy or compassing to counterfeit the great or privy seal
is not a counterfeiting nor treason within this act, for it must be an
actual counterfeiting. Co. P. C.p. 15.
A taking the great seal off from a true patent and clapping it on a
forged patent in former times hath been held high treason ; in 40
^ss. 33. it is plainly held to be high treason, (tho my lord Coke{l)
saith otherwise) for the woman, that did it, could not be let to main-
prise, which if it had been only a great misprision, she had been bail-
able upon that indictment.(m)
• 2 H. 25. which is entered H. 2. H. 4. B. R. Rot. 16. Midd. Cle-
ment Petitson^s case, the taking off the true seal from one patent
and fixing it to a forged patent is adjudged high treason; yet the
judgment is only quod distrahatur 4' suspendatur, which is the
judgment in petit treason.
This case and the reporting of it is disliked by my lord Coke P. C.
p. I5.;{n) but Stanf. PL C. p. 3. seems to agree with this resolution.
See also another case to this purpose for counterfeiting the privy seal, Rot. part. Q. E.'H.
part. 2. m. 18. '' John de Redynpes was arraigned and tried coram senescallo & mares-
callo hospitii domini regis pro contrafactionc privati sigilli domini re^is, & pro quibus-
dam litteris prisdlcto sigillo controfactis [contrafacto] consignalis cum co inventis," and
being found guilty had judgment, "Quod pro pra;dicta seducione [seditione] sit dctrac-
' tus, (fc pro manuopcre cum sigillo prcedicto postea suspensus.". Vide Rylcifs Flacita
Parluinenturia, p. 542 — 545.
(/) Co. P. C.p. 115.
(m) This argument of our author is very far from being conclusive, for by the statute
o{ Westtn. 1. cap. 15. where the offense is open and manifest (which for what ajjpoars
was tlic case here) the ofiender is not bailable, altho it were only a misprision. 2 Co.
insM88, 189.
(n) And well it might be, for that case appears by the record to have been thus:
^^ Clement I'eijlenyn was indicted, quod contraiccit magimm sigillum domini regis failso
& malitiose &, proditoiic, & cum dicto sigillo sic contrafacto quasdam liieras, quro pre-
sent' pra;dict' sunt consul', sigill'. he jjleads not guilty, the jury find, quod quoad con-
Iratactioncm sigilli prajdicti idem Clemens in nullo est culpabilis, sed dicuut, quod idem
Clemens falso &, dcccptoric dfe. in deceptionem populi de assensu aliorum de covinq. sua
[4] Neither the Congress of the United States, nor the legislature of the Common-
wealth have as yet declared the bare counterfeiting the public seal of the federal or state
government, to be an offence, of itself But if such seal were used in the counterfeiting
or forging any certificate, indent, or other public security, to which a. seal was by law
necessary to be nflixcd, it might bring the offence under the laws which respect coun-
terfeits and forgeries. Act of (congress, April .30, 17!)(). ch. 19. set.t. 14. L(iws of Virg.
1794. ch. 13.'}. sict. 3. 4 Ttickrr''s lU. Com. 83. Several of the States have passed laws
against counterfeiting the seals of the Stale, courts, &,c.
HISTORIA PLACITORUM CORONA. 182
But the later authorities are against it, and that it is only a great
misprision and offense, but not high treason, no nor yet felony, as it
seems by the book hereafter cited.
37 //. S. B. Treason 3. A chaplain taking a goOd seal off from an.
old patent, and fixing it to a forged dispensation of non-residence no
treason, but only a great misprision punishable by fine and imprison-
ment.
H. 4 Jac. cited by lord Coke, P. C. p. 16. Leakeys case, who joined
two parchments together with glew so close, that it could not be dis-
cerned, and put a label through both, and on the one a true patent
granted, which passed the seal, and then afterwards upon the other
parchment wrote a forged patent, then he cut off the true patent and
published the other as a true patent; this was ruled by the advice of
all the judges, 1. That this was no counterfeiting of the great seal,
nor treason within this act. 2. But if it had been a counterfeiting of
the seal, he might have been generally indicted of treason for coun-
terfeiting the great seal, but it was ruled to be a great misprision ot
offense, but not high treason ; and with this opinion agrees my lord
Cuke, and it is the safer and later opinion and fit to be followed.
If the patentee of the king, of lands under the great seal, faze the
name of one of the manors and make it another name, this
is not counterfeiting of the seal nor treason within this sta- [ 183 ]
tute, but a great oflense or misprision, for which the abbot of
Bnier was sentenced before the king and his council, and the abbot
delivered up the charter to be cancelled. Claus. 42 E. 3. m. 8. dors.
Co. P. C. p. 16.
If the chancellor or keeper affix the great seal to a charter without
warraut, tho this be a misdemeanor in him, it is not treason within
this statute, tho Britton and Fleta uhi supra make it treason at
common law ; and altho it should be supposed treason at common
law, but not comprised within the statute, yet it is not now felony;
therefore the rule taken 3 H. 7. 10. that those treasons at common
law, which are not within the declaration of 25 E. 3, yet remain
'felony, is not true, as might be made appear by many instances.
scribi fecit, & finxit literas illas pendi fecit sigillum magnum domini regis, quod antea
pendebat super aliam magnain patentam domini regis. Si. sigillum dominii regis praedic-
tura subtiliter &l private consui fecit super literas falsas prsedictas, & illas falsas literas
una cum sigiUo domini regis prcedicto in diversis partibus regni AngliiB tanquam veras
literas pateiitcs, prout eapdem litcrce faciunt mentionem, usus est & exercebat in decep-
tioiiem domini regis & populi sui ; propter quod pro eo, quod curia non avisatur, quale
judicium praidictus Clemens in hac parte subire debeat, remittitur prisonao marescli' :
Afterwards in the Easter term next following, viso indictamento necnon veredicto prse-
dictis videtur curiiE liic, quod fal-sse literjE prsedictfe sic in deceptionem domini regis &
populi sui facta; & sigillatag, una cum usu &- exercitio earundem, alta proditio sunt, con-
sideratum est, quod praedictus Clemens Feyteni/n distrahatur &. suspendatur." This
mvst be owned to be a very extraordinary case, for as lord Coke justly observes, whatever
offcQso this were, yet this judgment ought not to have been given upon this verdict, for
the jury had ex))ressly acquitted him oT the offense charged in the iudictment ; not to
mention, that it is directly contrary to the case above-mentioned of Geoffrey de Hunlyn.
<on; there is likewise another irregularity in this case, that tho the otFcnse was commit-
ted after the 25 E. 3. and is laid to be done proditorie, yet it is not laid to be contra for-
mam tiatud, as since that statute all treasons ought to be.
, VOL. I. — 21
18^ HISTORIA PLACITORUM CORONA.
And upon the same account it seems, that ahho, by Fletn and
Britton, if a man find casually the great seal, and seal a. forged
charter, this was treason at common law ; yet it is neither felony" nor
treason at this day, for here is no counterfeiting of the great seal, it
.is therefore only a great misdemeanor, Co. P. C.p. 16.
And altho it seems, by tlie old books above cited, that counterfeit-
ing of the judicial seal of the king used for writs was then treason,
yet very lately in the king's bench it was ruled to be no felony at
this day, but only a great misdemeanor punishable by fine and-
imprisonment, or by standing in the pillory, or both, so that the book
of 3 H. 7. is not in all points agreeable to law, for many things were
treason before 25 E. 3. which are thereby declared not to be treason,
and yet remain' not felony at this day ;' and the like for counterfeiting
the seal of a statute merchant.
If a man grave the sculpture of the great seal without warrant
from the king, but never use it or apply it to seal any thing, this
seems to be no counterfeiting of the great seal, tho it be with design
and preparatory to such an attempt; for tho in truth the instrument
itself be the seal, as appears by the usual expression sigillo meo
sigillaf, and by the frequent proclamations de sigillo amisso, when
either the king or a subject lost his seal casually, yet it seems not a
seal within this statute till an impression made in wax in
r 184 3 testimony of sonie writing, no more than the forging of a
stamp for money is a counterfeiting of money, unless it be
used, tho in both cases it is a great misdemeanor and a great evi-
dence to prove the offense committed, if any other circumstances
concur to prove it done.
M. 16 Jac. B. R. One counterfeited the draught of a patent to
himself and others to compound with alehouse-keepers and usurers
touching their offenses, and coiuiterfeited the privy signet to warrant
the passing of the other commission so by him drawn, and collected
divers sums of money thereby, and for counterfeiting the privy signet
he was indicted of high treason upon the statute of 1 Mar. It was
resolved, 1. That the counterfeiting of the great seal, privy seal, sign
manual, or privy signet is at this day high treason. 2. That the
adding of the crown in the counterfeit signet, which was not in the
true, and the omission of some words in the inscription, .which were
in the true signet, and the inserting other words, which werp not in
the true, (which was done purposely, that there might be a difference
between the true signet and the counterfeit) alters not the case, bat
it is high treason, for the fixing of the counterfeit signet, and thereby
obtaining the great'seal to his feigned patent, and thereby publishing
it to be true, and collecting sums of money by it make it treason}
the offender had judgment to be drawn, hanged and quartered.(o}''
So that it should seem, that tho there might be so great a disparity
between the true and counterfeit signet, that the bare affixiifg of sucl^
a seal might not be a counterfeiting within the statute ; yet if it were
(o) This case is reported in 2 Rol, Rep. 50. by the name oi Robinson's case.
J
HISTORIA PLACITORUM CORONiE. 184
so like, that it deceived the officers of the great seal, and was used
to tlmt purpose, and attained its effect, viz. the affixing- of the great
seal to (he forged commission, it was a sufficient counterfeiting to
bring him within this law of 1 Mar.
The like inutatis mutandis may be applied to the great or privy
seal.
If a man counterfeit the stamp of the great seal, and
deliver it to B. to use, B. being ignorant that it is a counter- [ 1S5 ]
feit stamp, but thinking it true, seals a writ or commission,
this seems not to be treason in B. because he did it not proditori^y
but it seems to be treason in the deliverer, if he delivered it to that
purpose, for he did it proditorih, but the other not.
III. I come in the last place to consider the judgment in the case
of counterfeiting of the seal, whether it be only to be drawn and
hanged, as in the case of counterfeiting money, or to be drawn,
hanged, beheaded, ^'C. as in the case of compassing the king's death,
levying of war, or adhering to the king's enemies.
It seems that at the common law this offense was felony or treason
at the king's election ; if the indictment ran only felon ice it was only
felony, '\i proditori^ it was treason. (;>)
But altho it were proditoril and so applied to treason, it was not
a treason of so deep a die, as that of compassing the king's death,
adhering to the king's enemies, ^r levying war, which strikes at the
head, and therefore in comparison thereof it was a kind of petit
treason.
Clans. 6 Johan. M. 12. doi^s. " Scias quod dedimus Jldsed^o, Essex
clerico nostro pro servito sno omnia terras, tenementa & jura, quae
fuerunt JVilliehni de Siriibby, cujus terrae & tenementa sunt eschaeta
nostra per feloniam, quam fecit de falsificatione figilli nostri." Et
nota the king had the escheat, yet the offense was styled felony.
At the parliament 18 E. 1. Co. P. C. p. 16. Clergy was allowed
to a man convict pro falsificatione sigilti regis, deliberatur ordi-
nario,{q) but in tali casti non admittenda est purgatio ;
and yet in these greater cases of treason of levying war or [ 186 ]
compassing the king's death clergy was not allowed at com-
mon law. T. 21 E. 3. B. R. Rot. 23. Rex.{r)
(p) Co. P. C. p. 15.
(9) This is confirmed by Philip Burton's case, (P. 18 E.2. B. R. Rot. 25. Rex South')
who together with Richard de Bourne was indicted Quod nequiter & seditiose contra-
fecit figillum de metallo ad modum inagrii figilli regis, de quo quidem figillo contratacto
diversa brcvia quarnplurima eonsignavit; he pleads quod clericus est, the jury find him
• guilty de feloniu Sf seditione prccdicfis ei imposilis, and lie was thereupon delivered to
his ordinary, tanquam clericus convictus, from hence it appears that at common law
clergy was allowed in cases of treason, where it was not inmicdiately against the king's
person.
(r) That case was thus, Peter de Thorpe son of John de Thorpe was indicted, and
afterwards outlawed anno 18 E. 3. pro diversis feloniis 6f seditionibus, viz. going to
little Yarmouth and Gorleston cum tribus vexillis exteusis in modum guerrcc, breaking
open houses there, feloniously taking away goods there, &fc. and also five ships, " Quae
pra;parat8B crant de victualibus &. aliis necessariis eundi cum domino rcge in guerra fua,
&.C. Altcrwards coram regc ([Uiesitum est a prajfato Pelro, si quid pro so habeat vel
diccre scial, quare ad executioncm judicii de eo super utlagaria praidicta procedi non
dcbeat, &,c. Qui dicit, quod clericus est &. membrura sacra) ecclesia?, &,c. Et quiBsitum
186 HISTORIA PLACITORUM CORONiE.
M. 1. E. 3. Charter de Pardon I3.(f) A man arraigned for
counterfeiting the king's seal pleaded a charter of pardon of all felo-
nies, arjd it was allowed ; yet there it is agreed, that the judgment
for such an ofjense is, that he shall be drawn and hanged, but such a
pardon will not serve in such a case since the statute of 25 E. 3.
Trin. 10 E. 2. Rot. 132. B. R. Bucks. " Boberius Legat k
Johannes Salecok per ballivos coram rege ducti ad respondendum
domino regi de hoc, quod ipsi cum aliis ignotis in pleno mercato
villse de Olneye, cum quadam falsa commissione & ficta cum quodam
sigillo regis controfacto signata, quam ballivi in curia regis hie por-
rexerunt, asserentes, illam super eos inveniri die, quo attachiati
fuerunt & dicentes, quod virtute illius commissionis prisas fecerunt
ad opus domini regis, usque ad summam sexaginta besliarum, de
quibus quatuor bestir inventae fuerunt in eorum possessione & cum
eis hie ductse ; they both plead not guilty ; the jury find John Sale-
cok guilty de falsitatibus & feloniis praedictis, judgment given against
him pro falsitatesigilli regis & commissione praedictis quod detrahatur
& pro furtiva abduclione prasdictarum besliarum suspendatur."
Nota, an arraignment of treason without indictment upon
r 187 ] the 7nainouer[t) found upon them: vide P. 21 E. 3. B. R.
Rot. 46. Midd'' Rex.
According to the old books above-mentioned, Fleta, ^-c. ubi
st(pra,dis(rohi debet &; siispendi ; and so it was practised in the
case of 2 H. 4. above-mentioned, where the judgment is only (//■?-
Irahi Sf suspendi.
And it may be reasonably argued, that as in the case of counter-
feiting the king's coin, which was a treason at common law, tho it
be so declared by the statute of 25 E. 3. yet the judgment, that wa^
at common law, which was only to be drawn and hanged, is not
altered by that statute. M. 10 Car. B. R. iMorgan's case ;(«/) so in
case of counterfeiting the seal ; but at this day the law is generally
held, that for counterfeiting of the great or privy seal, or of the privy
signet or sign manual, the judgment is to be hanged, beheaded and
quartered, as in other high treasons, and so was the judgment in the
case of 16 Jac. above-mentioned; and it is safest to follow the modern
practice in judgments of high treason, tho I think it no error, if the
judgment be only guod distrahatur (5* snspendatur according to
the antient precedents, because the judgment is still capital, and tho
it be less, than the highest judgment in treason, yet it is still included
in it.[5]
est scepius ab eo, si qnid aliud velit dicere pro responsione in rctardationem judicii, &c.
Qui dicit, ut prius, &i, niliil aliud rcspondet, &-c. Et inspcctis indictamentis praedictis,
&i, etiam recordo &- j)rocessu utiagar' pricdictre; manifestiE compcrtuin est in cisdem,quod
utlagar' prtedicta nuper arliculo sedilionis proniulgatur, in quo casu prtedictus Petrus
privilegio cicricali gaudere non potest secundum legem & consactudinem regni, &c.
Ideo idem I'elrus distrahatur & suspendatur, &,c."
(s) 1 E. 3. 23. b. -
• (/) See for this kind of arraignment, 7 H. 4. 43. b. S. P. C. 148. c. 2 Co. Instit. 188.
(u) Cro. Car. 383.
[5] The Statutes of treason relating to the great seal, privy seal, privy signet, sign
manuul, &c. have all been repealed by the H Geo. 4. ^T 1 Will. 4. c. 66. s. 2. by which
HISTORIA PLACITORUM CORON.^. 187
it is enacted, " That if any person shall forge, or counterfeit, or shall utter, knowing the
same to be forged, or counterfeited, the great seal of the united kingdom, his majesty's
privy seal, any privy signet of his majesty, his majesty's royal sigft manuel, any of his
majesty's seals appointed by the twenty-fourth article of the union, to be kept, used, and
continued in Scotland, tiie great seal of Ireland, every such offender shall be guilty of
high treason, and shall suffer death accordingly; provided always, that nothing contained
in an act passed in the seventh year of the reign of King \¥illia?n the Third, entitled,
■' An act for regulating of trials incases of treason and misprision of treason,' or in
an act passed in the seventh year of the reign of Queen ylnJie, entitled, ' An act for
improving the union of the two kingdoms,' shall extend to any indictment, or to any
proceedings thereupon, for any of the treasons herein before mentioned."
The 7 Will. 4. <^ 1 Vict. c. 84. s. 1. after reciting the enactments of the 11 Geo. 4. Sf
1 Will. 4. c. 66. enacts, " That if any person shall after the commencement of this act,
be convicted of any of the offences herein before mentioned, such person shall not suffer
death, or have sentence of death awarded against him for the same, but shall be liable
at the discretion of the court, to be transported beyond the seas for life, or for any term
not less than seven years, or to be imprisoned for any term not exceeding four years
nor less tlian two years."
CHAPTER XVII.[l] [ 188 ]
CONCERNING HIGH TREASON IN COUNTERFEITING THE KING's COIN,
AND IN THE FIR.ST PLACE TOUCHING THE HISTORY OF THE C0IN[2]
AND COINAGE OF ENGLAND.
The legitimation of money and the giving it its denominated value
is justly reckoned ijiter jura majestuf is, and in England it is one
special part of \he king's prerogative.
[1] The law as it is written in the ensuing chapters, which treat of treasons relating
to the coin, has undergone very great alterations by a late Act of Parliament. Milder
and more suitable punishments have been attached to these offences, and the guilt of
treason has in every instance, been taken away from them. They now range under the
heads of felony and misdemeanor; which seems to be the proper classification; and the
one adopted by the old law writers, in whose treatises they always rank as a species of
\\i& crimen falsi. See 4 Bl. Com. 88. But there still remains a great deal of curious and
useful information untouched by the provisions of this Act. The statute alluded to is
the 2 Will. 4. c. 34. which repeals wholly or in part the undermentioned statutes relating
to the coin.
{Statutes wholly repealed.) Stat, de Moneta vulgo. 21 Edw. 1. Stats. 4. 5. Sf 6. 27 Edw.
1. Stat. 1. 9 Edw. 3. Stat. 2. 17 Edw. 3. 25 Edw. 3. Stat. 5. c. 12. Sf 13. 3 Hen. 5
Stat. 2. c. 6. Sf 7. 19 Hen. 7. c. 5. 5 t^ 6 Edw. 6. c. 19. 1 Mar. Stat. 2. c. 6. 1 P. ^ M.
c. 11. 5 Eliz. c. 11. 14 Eliz. c. 3. 18 Eliz. c. 1. 8. Sf 9. Will. 3. c. 26. 9. Sf 10. Will. 3.
c. 21. 1 Ann. Stat. 1. c. 9. 15 Geo. 2. c. 28. 11 Geo. 3. c. 40. 13 Geo. 3. c. 71. 7 Geo. 4.
c. 9.
(Statvteg partially repealed.) 18 Edw. 3. Stat. 1. 25 Edw. 3. Stat. 5. e. 2. (the famous
statute of treasons: repealed as far as regards the coin) 27 Edw. 3. Stat. 2. c. 14. 6 Sf
7 Will. 3. c. 17. 7 Ann. c. 24. 7 Ann. c. 25. 37 Geo. 3. c. 126. 56 Geo. 3. c. 68. 3 Geo. 4.
c. 114.
It repeals the following Scotch Acts relating to the coin. 6 Pari. Jac. 2. 5 Pari. Jac. 3.
8 Pari. Jac. 3. 7 Pari. Jac. 5. 7 Pari. Jac. 5. 9 Pari. Mary. 1 Pari. Jac. 6. 1 Pari.
Will.
And also these Irish Acts. 3 Edw. 4. c. 3. 28 Eliz. c. 6. 8 Ann. 6. 23 Sf 24 Geo. 3.
c. 50. 26 Geo. 3. c. 39.
The principal provisions of the 2 Will. 4. will be found in their appropriate places
throughout these pages.
[2] Coin, in French, signifieth a corner, and from thence hath its name, because in
ancient times money was square as it is in some countries to this day. 1 Ins. 207.
188 HISTORIA PLACITORUM CORONiE.
Before I enter into the particulars concerning money I will give a
history or narrative of the various states and conditions and changes
of money in the several ages of this kingdom, and then shall descend
to some more particular observations, which will be useful in this
business. [3]
Money is the common measure of all commerce almost through
the world; it consists principally of three parts; 1. The material^
whereof it is made. 2. The denomination or extrinsic value. 3. The
impression or stamp.
I. The material in England is either pure silver, or pure gold,
whereof possibly some money was antiently made here in England,
or else silver or gold mixed with an allay, which was usually and is
hitherto a small proportion of copper.
The standard of the money of England, that hath for many ages
obtained, is that, which is commonly called Sterling{a) gold or Sler-
ling silver, for tho the denomination o{ Sterling was at first applied
to the coin of silver and to that coin, which was the penny
\_ 189 ] commonly called Slerlingus, yet use huth made it af)plica-
ble not only to all kind of English coin of silver, but also to
coin of gold, and this is called the standard of coin.
But before this can.be well understood, we must make some
digression touching the measures applicable to these materials.
In silver the measure or weights applicable thereunto are princi-
pally these:
1. The pound, which being not averdupois, but troy weight, con-
sists of twelve ounces.
2. The ounce consisting of twenty penny weight.
3. The penny, or Sterling, consisting of thirty-two grains of wheat
taken out of the middle of the ear.
This is the old compositiomensurariiniseii\ed in the time o{ E. \.{b)
viz., quud denarius Jlnglix, qui denominatur Sterlingus rotundus,
sine tonsura ponderabit triginta duo grana frumenti medio spicse, &
viginti denarii faciunt unciam, & duodecim uncise faciunt libram, &
octo librEG faciunt gallonem, & octo gallones busselum.(c)
Arid it is to be remembered, that at that time a penny did really
weigh the twentieth part of an ounce of silver, and twenty pennies
did really weigh an ounce of silver, and two hundred and forty pence
(n) Some imafrinc tliis word to come from the town of Sterling in Scotland, where
they protend tlic purest money was formerly made; otlicrs that it is derived from the
Sdxou word Stcore, which signifies rule or standard; others that it was taken from some
Flemish workmen, wlio in the reign of I\in<r Juhn were invited over to reduce the money
to its proper finentjss; the [)e()ple of tiiat country hv'm^ generally called Easterlin<rs.
(h) An old liiger hf)ok of the ahbey of St. Edmiiiidslmry, says the affair was thus
settled in,.'} /:.'. J. I)y George liucklei/ then mayor of London and master of the n)int; and
in the '28 E. 1. an indented trial- piece of the o-oodness of old Sterling was lodged in the
cxcliefjucr, and every pound weight troy of such silver was to be shorn at twenty shil-
lings and three pence. See TinduVs note on Raimi's history, suhjine Ed. 1.
('■) Vide statute 31 E. 1.2 Co. Instil. 577.
[3] 1 Bl. Com. 27G. 1 East, P. C. 147. Smith's Wealth of Nations, Book I. ch. 11.
HISTORIA PLACITORUM CORONA. 189
(lid really amount to a pound weight troy, and to twenty shillings,
which made a pound of silver coin.
And ahho at this time the coin is raised, and therefore varies from
what it was at that time, yet to this day twenty shillings in silver is
called a pound, and the measure of an ounce is by twenty penny
weights according to the old proportion ; but indeed the grain is
changed,(*) for whereas thirty [twoj grains of corn then made an
ounce, [a penny weight,] yet because the weight of corn is not al-
ways uniform, and tlie number of thirty [two] was not so
ready and easy for computation : the penny weight is now [ 190 ]
divided into twenty-four equal parts; which are commonly
in the business of the mint called grains.
But touching the measure of gold, there is some difference in re-
lation to coin from that of silver, for we are told by the libei^ ruber
scaccariiy in that large tract concerning money, that the pound of
gold consists of twenty-four carets, every caret weighing half an
ounce of silver, and every caret consisting of four grains; and con-
sequently every grain of gold would weigh sixty of those grains,
which we call grains of silver, viz. the artificial grains, whereof
twenty-four made the penny weight.(^)
Now the Sterling standard was antiently, as it seems, somewhat
diti'erent from the standard as it is at this clay, and for some hundred
of years before; for from the 46th year of Edward III. and for
some time before until this day, the standard of Sterling silver hath
been and is this, viz., every pound of Sterling silver hath eleven
ounces two-penny weight of fine silver, and eighteen penny weight
of copper, which makes the allay of Sterling; tut because there
cannot be so exact an observation of the proportion, a half-penny
weight of copper over or under is allowed for the remedy, which is
the cause that Sir Johyi Davis in the case of mixt monies„/o/. 24 b.
saith, that eighteen shillings and five pence halfpenny argenti puris-
simi continentur in quutibet libra, <§* quselibet libra de Sterling
money avoit 18 d. ob. de allay de coper, 4* nient pluis.
But before that tmie it appears by the red book in the exchequer,
(which was written before 46 E. 3. and after 23 E. 3.) the standard
of Sterling silver consisted of eleven ounces four penny weight of
fine silver, and. sixteen penny weight of copper, so that then the
standard was purer; and possibly by what follows it may appear,
that in the time of Henry II. the standard was purer than that, for
then there was allowed only twelve-pence upon the pound of silver
dcalbare Jir7natn,(e) which possibly might be to reduce it to fine
silver, but this is obscure; de hoc postea.
The standard of Sterling gold in the latter end of E. 3.(/) [ 191 ]
was, that a p^und of Sterling gold consisted of twenty-
(*) There bein^, as I appreliend, two or three mistakes in this paragraph, I was not
■willing to vary froni the original MS., but have inserted in brackets what I think was
intended.
[d) If 1 caret=4 grains=^ ounce=10 penny weight, then J caret = l grain=2.J penny
weight==60 grains of silver.
ie) Mat. Pari^, 747. (/) See TindaVs note on Rapiu's iiistory, sub fine Ed. 3.
191 HISTORIA PLACITORUM CORONA.
three carets, three grains and a half of pure gold, and a half grain
of allay of copper, and thus I think it continues to this day; and by
this we may understand the statute of 17 E. 4. cap. 1. and 4 H. 7.
cap. 2. by the former it is provided, that no goldsmith sell any gold
under the fineness of eighteen carets, nor silver under the allay of
Stei'ling; by the latter, that all silver, that shall be fined or parted,
be made so fine, that it may bear twelve penny weight of allay in a
pound weight, and yet be so good or better than Slerling.[4']
And this is the dignity of the coin of England, that it hath been
generally of the allay of Sterling, (except some small interruptions,
whereof hereafter) and according to this it was enacted 25 E. 3. cap.
13. that the money of gold or silver, which now runneth, shall not.
be impaired in weight or allay, but as soon as a good way may be
found, the same be put into the antient state, as in the Slerling made
upon the petition of the commons. Rot. Par. 25 E. 3. n. 32.
II, As to the second essential of coin it is the denominated or
extrinsic value, which is and of right ought to be given by tiie king,
as his unquestionable prerogative, (^) and that is seen in these par-
ticulars.
1. In the first institution of any coin within this kingdom lie, and
he alone sets the weight, the allay, the denominated value of all
coin;[5] this is done commonly by indenture between the king and
the master of the mint; de quo postea.
(g) Flo. Com. 3i6,
[4] By the 9th Sect, of the Act of Congress of April 2, 1792, ch. 16, it is enacted,
That there shall be from time to time struck and coined at the mint, coins of gold, silver,
and copper of the following denominations, values, and descriptions, viz.: Eagles — each
to be of the value of ten dollars or units, and to contain two hundred and forty-seven
grains and four-eighths of a gram of pure, or two hundred and seventy grains of standard
gold. Half Eagles — each to be of the value of five dollars, and to contain one hundred
and twen(y-three grains and six-eigiiths of a grain of pure, or one hundred and thirty-
five grains of standard gold. Quarter Eagles — 'each to be of the value of two dollars
and a half dollar, and to contain sixty-one grains and seven-eighths of a grain of pure,
or sixty-seven grains and four-eightlis of a grain of standard gold. Dollars or Units —
each to be of the value of a Spanish milled dollar as the same is now current, and to
contain tlirce hundred and seventy-one grains and four-sixteenth parts of a grain of
pure, or four hundred and sixteen grains of standard silver. Half Dollars — each to
be of half the value of tiie dollar or unit, and to contain one hundred and eighty-five
grains and ten-sixteenth parts of a grain of pure, or two hundred and eight grains of
standard silver. Quarter Dollars — each to be of one-fourth tiic value of the dollar or
unit, and to contain ninety-two grains and thirteen-sixteenth parts of a grain of pure, or
one hundred and four grains of standard silver. Dismes — each to be of the value of one-
tenth of the dollar or unit, and to contain tiiirty-seven grains and two-sixtccnth parts "of
a grain of pure, or forty-one grains and tliree-filtli parts of a grain of standard silver.'
Half Dismes — each to be of the value of one-twentieth of tlie dollar, and to contain
eighteen grains and nine-sixteenth parts of a grain of pure, or twenty grains and four-
fifth parts of a grain of standard silver. Cents — each to be of the value of one-
hundredth part of a dollar, and to contain eleven penny weights of copper. Half
Cents — each to be of liic value of half a cent, and to contain five penny weights and
half a penny weight of cop[)cr.
[5] The power to coin money, regulate the value thereof, and of foreign coin, is con-
ferred on Congress by the Constitution, Art. I Sect. 8. And it is exclusive in Congress,
the States being expressly prohibited '(jlr^. 1. (See*. 10.) from coining money; though
HISTORIA PLACITORUM CORONA. 191
And tho by special charter or usage clivers prelates and monas-
teries in England had a certain number of stamps for the coinage of
money, as the abbot of St. Edmundsbiiry, Cluiis. 32 H. 3. m. 15.
dors, the archbishop of York, Claus. 5. E. 3. part. 1. m. 19. and
likewise the archbishop of Canterbury, the bishop o{ Durham, the
bishop of Chichester, kc- de quihus vide, statute 14 (§• 15 //. S. cap.
12. yet they iiad only the prolit of the coinage, and the residence of
some coiners at their cities, but they had not the power of instituting
either the allay, the denomination, or the stamp; the stamps
were usually sent them by the treasurer and barons of the [ 192 ]
exchequer by the king's command under his great seal, and
tlie masters or chief officers imployed therein were sworn to the king
for tlie juBt execution of their places.[6] Claus. 5. E. 3. part. 1. m.
10. 8,' 19.
But those mints have been long disused, tho it should seem by the
statute of 14 H. S. cap. 12. above-mentioned, that the several statutes
made against exchange of money, other than at the king's exchanges,
were not intended to prejudice these particular franchises of coinage.
2. He may by his proclamation legitimate foreign coin, [7] and
make it current money of this kingdom according to the value im-
posed by such proclamation; but the counterfeiting of such money
was not treason, till the statute -of 1 Mar. cop. 6. made it so,[S] nor
the clipping, washing, impairing thereof was not treason till 5 Eliz.
they ejfcrcise the authority of establishing a circulation of bank paper as a currency.
Congress have enacted a number of laws, which will be referred to, regulating the mint,
the domestic and foreign coin, and the offences relating to them.
•[6] The Acts establishing and regulatingthe mint of the United States, and for regulat-
ing coins, are the following : An Act establisliing a mint and regulating the coins of the
United Stales, Ajnil 2, 1792. cA. IG. An Act regulating foreign coins, and for other
purposes, February 9, 1793. ch. 5. An Act in alteration of the Act establishing a mint
and regulating the coins of the United Slates, March 3, 1794. eft. 4. An Act supple-
mentary to an Act entitled, "an Act to establish a mint and regulating the coins of the
United States," March 3, 1795. ch. 47. An Act respecting the mint. May 27, 1796,
cA. 33. An Act respecting the mint, April 24, 1800. ch. 34. An Act concerning the
mint, March 3, 1801. ch. 21. An Act to prolong the continuance of the mint at Fhila.
delphia, January 14, 1818. ch. 4. An Act further to prolongtlie continuance of the mint
at Philadelphia, March 3, 1823, ch. 42. An Act to continue the mint at the city of
Philadelphia, and for other purposes, May 19, 1828. cA. 67. An Act concerning the
gold coins of the United Stales, and for other purposes, June 28, 1831. ch. 95. An Act
to establish branches of the mint of the United States, March 3, 1835. ch. 37. An Act
Bupplementary to an Act entitled, "an Act establishing a mmt, and regulating the coins
of the United States," January 18, 1837. ch. 3. An Act to amend an Act entitled, an
Act to establish branches of the mint of the United States, February ]3, 1837. ch. 14.
An Act amendatory of an Act establishing the brunch mint at Danlonega, Georgia, and
defining the duties of the assayer and coiner, Februari/ 27, 1843. ch. 46.
[7] Under the confederation, the continental Congress had delegated to them, |' the
sole and exclusive right and power of regulating the alloy and value of coin struck by
their own authority, or by tllat of the States." By this grant there was no jjower given
to reguhite the value of foreign coin ; a defect which is supplied by the Constitution,
Art. 1. Sect, 8. Story on the Const. 16.
[8 1 By the 37 Geo. 3. c. 126. counteffeiting foreign gold or silver, is made felony, and
puniiilied with transp rtation for seven years.
VOL. I.— 22
192 HISTORY PLACITORUM CORONA.
cap. 11. and 18 EUz. cap. 1. but all these statutes allow the power of
legitimation thereof to the king by proclamation. (//)
3, He may inhanse the external denomination of any coin already
established by his proclamation, and thus it hath been gradually done
almost in all ages, as will appear by what follows in this chapter;
this is sometimes called imbasing of coin and sometimes inhansing
it ; and it is both, it is an inhansing of coin in respect of the intrinsic
value or denomination, but an imbasing in regard of the extrinsic
value ; as for instance, when in the lime of E. 4. a noble was raised
to a higher rate by twenty pence; vide 9. E. 4. 49.
4. He may by his prerogative imbase the species or material of
the coin, and yet keep it up in the same denominated or extrinsic,
value as before, namely to mix the species of money with an allay
below the standard of Sterling; this is the case of mixt monies in
Sir John Davis^s reports, where the case was this.
^^pril, 43 Eliz. Brett bought wares of one Gilbert di xneu
r 193 ~\ chant in London, and became bound to him in 200/. condi-
tioned for the payment of one hundred pound Sterling cnx-
rent and lawful money oi England in September following at Dub-
lin in Ireland: 24 May,4o Eliz. the queen sent into Ireland cexi^m
mixt money from the tower of London with the usual stamp and
inscription, and declared by her proclamation, that it should be law-
ful and current money of Ireland, viz. a shilling for a shilling, and six-
pence for six-pence, and that accordingly it should pass in payment,
and none to refuse, and declared that from the 10th oi July next all
other money should be decried and esteemed only as bullion and not
current money. Upon the day of payment Brett tendered the 100/.
in this mixt money, and resolved upon great consideration, that this
lender was good, the place of payment being in Ireland, and the day
of payment happening after the proclamation made; that altho this
■were not in truth Sterling, but of a baser allay, nor a money current
in England by the proclamation, yet the payment being to be made
in Ireland, it was, as to that purpose, current money of England;
but if the day had been passed before the proclamation, then he
must have answered the value, as it was when payment was to
have been made. Sir Jo lui Davis's reports, ca^e de mixt moneys. (i)
h is true, that the imbasing of money in point of allay hath not
been very usually practised in England, and it would be a dis-
honour to the nation, if it sliould, neitlier is it safe to be attempted
without parliamentary advice; but surely if we respect the riglit of
the thing, it is within the king's power to do it; for tho the statute
of 25 E. 3, cap. 13. above-mentioned be against it, yet the statute
doth not absolutely forbid it; and altho by Poyning's law 10 ^H. 7.
(Ji) See also 8^ 9 M''. 3. cap. 25. and 7 Ann. cap. 25. .whereby it is high treason
knowinfrly to make, mend, buy, .sell, or have in possession any mould or press for coining,
or to convey such instruments out of the king's mint, or mark on the edges any coin
current, or to counterfeit, or colour or gild any coin resembling the current coin of tlic
kingdom. And sec 15 Geo. 2. ch. 2d.
(i) Davis Rep. lb. /
HISTORIA PLACITGRUM CORONA. 193
all the precedent stalnies in Ens^land are of force in Ireland, yet
that resoUition was given as above.
My lord Coke in his comment of Jlrticuli super cartas, cap. 20.
seems to imply, that the alteration of money in weight or allay may
not be, withotU act of parliament, and for that purpose cites
the Mirror of Jastices,(A^) Ordein fuU, qe mil roy de ce [ 194 ]
reame ne poit chafi,^er sa money ne impayre, 7ie amender,
ne autre money /aire, qe de ore ou de argent sans assent de touts
ses counties; and the act of 25 E, 3. cap. 13. the statute of 9 H. 5.
sess. 2. cap. 6. that all money of gold and silver shall be as good
weight and allay as is now made at the Tower: the parliament-roll
of 17 E. 3. n. 15.(1) which was an accord in parliament for the
present amendment and increase of coin de fayre une mony des
bones Esterlinges en Engleterre du poys «§• allay del aunt lent Ester-
linges, qe avera son course in Engleterre enter les graunts 4' com-
mons de la terre, which should not be exported ; and if those of
Flanders would make money of as good an allay as Esterlinges,
that it should be current between merchant and merchant here, and
and others that would receive it, which was a temporary provision
for the increase of money.
All that a man can conclude upon these is, that it is neither safe
nor honourable for the king to imbase his coin below Sterling: if it
be at any time done, it is fit to be done by assent of parliament, but
certainly all that it concludes is, that fieri non debuit, but factum
valet., and this appears,[9]
1. By that resolution in the case of mixt monies, which, tho it
were but by way of advice and in Ireland, is of great weiglit, espe-
cially if we consider the consonancy thereof to the practice in Ire-
land, which tho it hath the same law of 25 E. 3. in force there, yet
generally their coin current there was of a baser allay than Ster-
ling,even before the proclamation of 43 Eliz.
2. By the usual inhansing of the coin in point of value and de-
nomination here, which tho it be not absolutely an imbasement of
the coin in the species, yet it hath very near the same effect.
3. By the attempts that have been made to restrain the change of
coin without consent of parliament. Among those many provisions
by the lords ordeiners,"5 E. 2. n. 30. that much abridged the king's
power, this was one, pur ceo qe a touts les foys qe le change de
mony se fait en royalme, tout le people est grandment
grievez in molts des manners, nous ordeinams, qe quant [ 195 J
mestier serra & le roye voile exchange faire, qil la foce par
common councell de son baronage & ceo en parlement.
But these ordinances, and this among the rest was repealed in par-
liament E. 2. and never revived again.
(A-) Cap. 1. §. 3. (Z) See Co. P. C. p. 93.
[9] The kmg's prerogative does not extend to the debasing or enhancing the value of
the coin, below or above the sterling value. 1 Bl. Cum. 278. 1 East, P. C. 148.
195 HISTORIA PLACITORUM CORONA.
Eot. Par. 20 E. 3. n. 17. "Item qe les recevers des payments
nostre seigneur le roy recenent de people en cliescun place auxi bien
or come argent al prise assise desicom le people est arte de eel re-
ceiver pur payment, & qe la change de mony de or ne dargent ne se
face sans assen de parlement. Ro'. Quant aprimer point de c'article
soyt tenus ; quant a les changes fair soit Particle monstre a nostra
seigneur le roy, «&. as graunts qe sont perdervers lui, qils ent or-
deignent & dient lour volunte."
King Henry VIII. imbased the coin of this kingdom in point of
allay, and so it continued during the residue of his reign, and during
the reigns of Edward VI. and queen Mary, in so much that the
penny had not above a half-penny of intrinsic value; but queen
Elizabeth among the rest of her excellent methods of government,
did by little and little rectify this detestable imbasement of coin:
1. By prohibiting exportation, and melting down of good silver.
2. By reducing the brass money to its intrinsic value. 3. By making
a good allowance (to her own loss) of the base money brought into
the mint. 4. By stamping of new money of just allay of Sterling:
Camd. Eliz. sub anno 1560. p. 48.
While I wrote this a proclamation hath issued, dated 16'^?/^.
1672, whereby copper coin of half-pence and farthings near the in-
trinsic value is proclaimed in these words: "We do by this our
royal proclamation declare, publish and authorize the said half-
pence and farthings of copper so coined, and to be coined, to be cur-
rent money, and that the same from and after the 16th of Jing.
shall pass and be received in all payments, bargains, and exchanges
to be made between our subjects, which shall be under the value of
six-pence, and not otherwise nor in any other manner;"[10] how
far this makes it current money, videbimus infra.
And thus far touching the power of denomination, or set-
[ 196 ] ting the extrinsic value upon coin; the manner how this is
done will be shewn hereafter.
III. The third essential in coin is the stamp or impression, for tho
it may- be possible, as Mr. Stowe says, that in antient time money
passed in England without a stamp or impression, yet I never read
any such thing since tlie conquest, for that, which is frequently called
blank money, was not money without impression, but white money
or pure silver, or at least Sterling silver coined, for otherwise it had
jiot been an apt measure for commerce : the stamps or impressions,
of current money were heretofore delivered to tlie master of the
mint from the exchequer, but of later times they are delivered by
the secretary sometimes with, sometimes without the indenture of
coinage: now touching the manner of the legitimation of coin Jii
England, it is sometimes by proclamation, but always by indenture
between the king and the master of the mint.
[10] This seems to have boon the first instance of the introduction of copper coin into
he general currency of England. See 1 East. P. C. 148.
HISTORIA PLACITORUM CORONA. 196
And therefore where Sir John- Davis in the case vbi S7ipra{m)
makes these six things as essentials to the legitimation of coin,
1. Weight. 2. Fineness. 3. Impression. 4. Denomination. 5. Autho-
rity of the prince. 6. Proclamation. The last is not always neces-
sary to the legitimation of coin, for theVe is scarce any king'^ reign,
but that there are various stamps or impressions of money, which
were never proclaimed, and therefore if upon an indictment of clip-
ping or counterfeiting the king's coin it he questioned, whether it be
the king's coin or no upon the evidence, there is not a necessity of
proof thereof by a proclamation, but it is a meer question of fact,
which nuist be left upon the jury by circumstances of fact to find,
whether it be the king's money; for tho there misht be possibly pro-
clamation of some new coins in the beginning of the king's reigns,
yet it would be impossible to prove them in the antient coins of
Edward VI. queen Mary, queen Elizabeth, S^-c. but if necessary to
be supposed, they may be presumed, ex diuturnilate temporis ; the
most therefore that can be expected is to produce the
ot^cers of the mint or their indenture to prove a coin cur- [ 197 ]
rent, if it be not otherwise commonly known.
But proclamation is necessary in these cases following,
1. A proclamation with proclamation-writ under the great seal is
necessary to legitimate and make current foreign coin, [11] and with-
out the proclamation it is neither current coin of this kingdom, nor
(m) 19 h.
[11] The Acts relating to foreign coin, are An Act to provide more effectually for the
collection of the duties imposed by law on goods, wares, and merchandize, imported into
the United Stales, and on the tonnage of vessels, August 4, 17!iO. ch. 35. sect. 40. An
Act relative to the rix dollars of Denmurk, March 3, 1791. ch. 19. An Act regulating
foreign coins, and for other purposes, February 9, 1793. ch. 5. An Act supplementary
to an Act regulating foreign coins, and for other purposes, February 1, 1798. ch. ll.
An Act to regulate the collection of duties on imports and tonnage, March 2, 1799.
ch. 22. sect. 61. An Act to suspend in part the Act entitled, " An Act regulating foreign
coins, and for other purposes," April 30, 1802. ch. 38. An Act regulating the currency
of foreign coins in the United Stales, April 10, 1806. ch. 22. An Act regulating the
currency within the United States of the gold coins of Great Britain, France, Portugal,
and iSpotn, and crowns oi' France and five franc pieces, April 29, 1816. ch. 139. An
Act to continue in force an Act regulating the currency witliin the United States of the
gold coins of Great Britain, France, Portugal, and Spain, and crowns of France, and
five franc pieces, March 3, 1819. ch. 96. An Act to continue in force an Act entitled,
"An Act regulating the currency within the United States of the gold coins of Great
Britain, France, Portugal, and Spain, and crowns of France, and five franc pieces,"
March 3, 1821. ch. 52. An Act to continue in force an Act entitled, " An Act regulating
the currency within the United States of the gold coins of Great Britain, France, Par.
tugal, and Spain, and the crowns of France, and five franc pieces," March 3, 1 823. ch. 49.
An Act regulating the value of certain foreign silver coins within the United Stales,
June 25, 1834. ch. 71. An Act regulating the value of certain foreign gold coins within
iiie United Slates, June 28, 183i. ch.^G. An Act supplementary to an Act entitled,
An Act establishing a mint and regulating the coins of the United States, January 18,
1837. ch. 3. sect. 8. An Act regulating the currency of foreign gold and silver coins in
the United States, March 3, 1843. c^. 69. An Act to fix the value of certain foreign
monies of accoutit in compensation at the custom house, March 3, 1843. ch. 92. For
fne rales of estimating foreign coins and currencies, see the Act to regulate tlie collec-
tion of duties on imports and tonnage, 2 March, 1799. sect. 61.
197 HISTORIA PLACITORUM CORONA.
•
is the counterfeiting, clipping or diminishing thereof treason with'in
the statute of 1 Mar. or 5 or IS Eliz. for the words in these statutes
[and by proclitmation allowed and suffered to be current here)
refers only to foreign coin, not to the coin of this kingdom; but tho
it be not proclaimed, it is misprision of treason to counterf«it[12] it-
lay the statute of 14 Eliz. cap. 1.
- The reason is especially because by the statute of 17 R. 2. cap. 1.
no foreign coin of gold or silver are to run in any manner of pay-
ment within this realm, but are to be brought as bullion to the mint
to be turned into English coin. [13]
2. A proclamation under the great seal is necessary to legitimate '
base coin or mixt below the standard of Sterlmg, and for the dis-
pensing within the statute of 25 E. 3. cap. 13, and 4 H. 5. cap. 6.
and with application to, that case the opinion of ^ir John Davis^s
report touching the necessity of a proclamation seems to be good in
law.
3. A proclamation under the great seal is necessary, when any
coin already in being is inhansed to a higher denomination or ex-
tritisic value; as when the twenty shillings piece of gold was raised
to twenty-two sliillings, because it was once current money under
another denomination; thus it was done upon the inhansing of
twenty shillings and ten shillings pieces by king James.
4. A proclamation is necessary when any money, that is current
in usage or payment, is decried; thus it was done in the case of 43
Eliz. for the Slerlins^ money in Ireland before mentioned; and thus
it was done by the Pollards and Crocards tempore E. 1. {n) Dy. 83.
and by the several base monies mentioned in Jirticuli de tnonetd,
namely the money with the mitre and with the lyons, which
[ 198 ] it seems were minted in England, besides the other foreign
money therein mentioned. (o)
5. Altho in the case of money newly coined by the king's autho-
rity in ^«o-/ri?^(/ a proclamation is not absolutely neces.sary to the
legitimation thereof or making it current, yet to incluce a contempt
upon such as refuse to take it in payment such proclamations havA.
not been altogether unusual, and by the red book of the exchequer
seems necessary for that purpose; for how can men reasonably
know at first, whether this be the king's coin without some sucli
public notification, where long use and custom hath not made the
stamp or coin familiarly known to those, that are to receive it: vide
proclamations for money newly made principally upon this account,
Claus. IS E. 3. part 1. m. 28 4' 12. dors. Claus. IS E. 3. part 2.
(n) D'lvis 21. h. Sec the nolo in Rapin's hist, suh fine Ed. 1.
(tt) And tlius it waH lately done in tlie cu.se of tiie broad pieces of twenty-five shillings
and twcuty-threc shillings.
[12] It is a misdenieanor, by tlie 43 Geo. 3. c. 139, to counterfeit foreign coin not
current by procinmation, but resembling copper or mixed metal coin of a foreign state.
[n]lEast,r.C.Wd.
HISTORIA PLACITORUM CORONA. 198
m. \^. dors. Claus. 19 E. S. part 1. m. 23 5' pari 2. m. 15. dor a.
Claus. 20 E. 2,. part 2. m. 20. dors, and 25 E. 3. m. 14. dors. But
yet the money is the lawful money of England, aiid he that coun-
terfeits it is within the law of 25 E. 3. for treason, tho there be no
such proclamation : vide Libr. Ruhr. Scaccarii, fol. 259. « Impri-
mis oportet ut omnem monetam prsecedat constructio allaii, viz.
ponderisque & numeri ipsius monetas distincie & apte continens
moderamen, deinde inchoanda est & perficienda ex edicto aut licentia
principis speciali, & publicanda per proclamationem prasconis ipsius
principis publice, ut mos exigit faciendum, & tunc usui apta erit : ita
ut ex tunc non sit impune a quoquam de populo recusanda. Qui-
ctmque autem clam vel aperte vel paliim absque licentia principis
cujuscunque monetae contrafactionem attemptasse convictus fuerit,
corporaliter plecti solet."
And now I shall give a brief history of the variation of the coin of
England.
It appears by all the antient monuments, that I have seen, that the
use of coin or money was antient and long before the conquest. (/?)
It is true tliat Gervasius Tilburiensis, who wrote the
black book of the exchequer in the time of Henry II. com- [ 199 ]
monly called magister <§• discipiihis, Lib. I. cap. a cjidbus
8}' ad quid instituta fuit argcnli purgatio, says, that in the times
^f king William I. IVilliam II. and Henry I. the antient farms of
the king's demesnes were answered in cattle, corn, and other provi-
sions in specie, because it saved the king the trouble of purveyors,
and money was scarce among the people, and yet the reservations of
their rents were in money, viz. so many pounds numero, or so many
pounds hlanc; de quibus infra.
And to make an equation between the provisions, that were
answered in kind, and the rents that were reserved, there were cer-
tain rates or prices agreed upon almost all such provisions, as for
wheat for one liundred men per diem twelve pence, for a fat ox
twelve pence, &c. which it seems were delivered to the sheriff and
by him answered to the king in money or kind, as it was agreed.
But those farm rents, that were reserved out of the cities, boroughs,
franchises, &c. because they had not provisions in kind were answered
in money according to their reservations.
In the time of Henry I. this answering of farms by provisions
ceased, and the tenants paid their money according to the letter of
their reservations; the king was weary of receiving, and the farmers
weary of paying their rents in victuals and provisions, but money
still was in use as the common instrument of commerce and valua-
tion.
In the troublesome time of king Stephen we are told by Roger
Hoveden sub anno 1149. Omnes potentes tarn episcopi, quam
comities S,' barones siiam faciebant monetam, which occasioned a
(p) Tliat money was coined here in the time of the Saxons is sufficiently plain, but it
h very doubltVil whether the Britons ever coined any; in Casar's time they used only
iron-rings, or piccee of brass; Casar, Com. de B. G.'lib. 5, m. 12.
199 HISTORIA PLACITORUM CORONA.
great confusion and corruption in money and commerce :(y) Henry
II. coming to the crown reformed this usurpation and abuse, novam
fecit monetam, qiise sola accept a erat fy recepta in regno ;[7') and
thus it hath hitherto obtained, only some particular corpora-
r 200 ] tions ecclesiastical, as bishops and abbots had special privi-
leges granted to them to have mints,(,y) some one stamp,
some two, some more, which yet were sent to them from the king's
exchequer, and their officers sworn to the king to deal faithfully in
their offices.
Yet after this king's time, especially in the beginning of king'
John's time, there was a great uncertainty and disorder both in the
weight and allay of coin; for Clans. 7 Johanyi, rn. 24. Sciatis quod
recipimus per manum Petri de Ely, S^c. trecentas libras numero,
quae ponderuhant quingentas libras 47s. Sd. and in the same roll,
m. 25. recipimus de Thesauro per manus Petri de Ely, 1725/. &
11,9. Qd. numero, quw ponderabant 1556/. 17*. Qd. which holds no
proportion with the former.
Henry III. had a troublesome reign, and ra'alefactors abounded,
especially in relation to the clipping of money; in his thirty-second
year he made new money, and ordained ne quis denarius, nisi
legiiimi ponderis Sj- circular is for mm uteretur, dipt money not to
be received but perforated, and divers offenders were hanged. Mat.
Paris sub anno 1248 ;(/) but we have not the just standard of
weight of his money.
In the time of Edward I. we know what the weight and allay of
his current money was, namely the allay was Sterling, twenty shil-
Hngs made a pound weight troy, and twenty pence an ounce, so that
the pound of Sterling slUerm^de. two himdred forty Sterling pence.
There were other base monies in his time, as namely, those that
were decried by \he ^rticuli de monefd, and Pollards nnd Cro-
cards; what the value of the latter was I know not, but it appears
by Clans. 2d> E. 1. m. 6. quod pro qualibet libra pollar dor um una
marca Sterlingorum solvitur ad Scaccarium: they were both
decried in the 28 E. l.{u) Vide Dy. SI. This rate oi Sterling cow-
tinued during some time of Edward II.
{q) William of Newbury writes tlius under the reign of king Stephen, Erant in Anglia
qundammodo tot rcises vel potius tijranni quot doviini castelloruTn,habente8 singuli ptrcui-
suram pioprii numismntis.
(r) iSee Wilk. Leir.Ucnrij 11. p. 320. where these Words are also jiddcd, ahdicata jam
procermn ilia; the truth is, this reformation of the money began to be made towards the
Jatlcr end oi' Siephe.n^s reign, for among tlie artieles of pcaec between Stephen and Henry
this was one, that the silver coin should be one and the same throughout the liingdoin.
Jbid. p. '315. Mat. Paris, p. 13:).
(s) See a charter of king Julin allowing this privilege to Hubert archbishop o( Canter-
bury. Wilk. Leg. Johannis, p. 355.
(t) p. I'll.
(w) As appears by the proclamation, Quad J'ollardi Sf Crokardi nan currant in regno
AngliiB, Claus. .28 E. 1. m. 12. dors, by which record it also appears, tiiat two Ptillards
and cne Sterling were much about the same value; for the words are Licet nnper pro
communi vtilitate reirni nnstri dc concilia nostra ordinavimns, quod duo I'ollardi, vcl duo
Crokardi currerent in eodein regno pro uno Stcrlingo.
HISTORIA PLACITORUM CORONA. 201
I have not seen anv indentures of the mint between the
time of Edward II. and the 46 Edward\l\{x) and then by [201 ]
the indenture of the mint Clans. 46 E. 3. m. 18. a pound of
gold made forty-five nobles, each noble six shillings and eight pence,
and was to consist of twenty-three carets, three grains and an half of
fine gold, the rest allay; the coinage to be four shillings for each
pound for the master of the mint, and twelve pence for the king; the
pound valued at fifteen pounds, and the merchant upon the return
to have out of the Tower fourteen pounds fifteen shillings.
A pound of silver was to make three hundred pence, and so in
that proportion groats, half-pence, and farthings, which was to be of
the allay du viel Esterling.viz. eleven ounces two-penny weight of
fine silver, and eighteen penny weight of allay; eight pence to be
allowed for coinage.
The next Indenture I find is 3 H. 4. p. 2. m. 9. dors, whereby a
farther alteration was made.
The pound of gold made the same quantity of nobles, and was of
the same' allay as before, only upon every pound was allowed three
shillings and six pence to the master, and one shilling and six pence
to the king for coinage.
Tlie silver coin of the same fineness, weight and allay, as by the
iadenture of 46 E. 3. the coinage eight pence, whereof seven pence
to the master, and one penny to the king upon every pound weight.
Claus. 1 H. 5. m. 35. dors, the allay of gold and silver still the
same as before, but some other variance there was.
The pound of gold was now to make fifty nobles, the value of the
whole, pound to be sixteen pounds thirteen shillings and four pence,
the coinage five shillings.
The pound of silver was to make three hundred and sixty
pence, the coinage was nine pence to the master, and three- [ 202 ]
pence to the king; so that now the pound of silver made
thirty shillings Sterling, whiWi began in Rot. Pari. 13 H. A. n. 28.
by ordinance of parliament.
Claus. 9 H. 5. m. 2. dors, the same weight and allay of gold, viz.
every pound of gold to make fifty nobles, the coinage to the king
three sliillings and six pence, to the master eighteen pence.
The like as to silver in all points as by the indenture of 1 H. 5. only
the master to have nine pence, the king three pence for coinage.
Claus. 1. H. 6. m. 13 ^-15. The indenture agrees in all things
with that of 9 H. 5.
Clans. 4. E. 4. m. 20. The king by proclamation inhanseth the
v^lue of coin, so that the noble of gold, which before was six shillings
(ar^ But among the records in the Tower there are several indentures to be found
within that time, viz.
Clavs. 18 E. S.p.Q.m. 19. d.
Pat. 18 E. 3. p. I. m. 27.
Claus. 23 E. 'S. p. I. m. 21. d.
Claus. 25. E. 3. m. 15. d.
Clans. 29. E. 3. in. 6. d.
Claus. 35 E. 3. m. 10. d.
VOL. I. — 23
202 HISTORIA PLACITORUM CORONA.
and eight pence, is now raised to eight shilHngs and four pence, three
groats make a shilling, and so do twelve pence, and twenty shilUngs
make a pound.
And afterwards he made new coins according to the standard of
gold aforesaid, viz. the nohle of gold eight shillings and four pence,
and the pound of silver raised to thirty-seven shillings and six pence ;
and now I shall follow John S/owe in his Survey of London, p. 47.
H. 7. raised the rate of Sterling silver coin to forty pence the
ounce.
18 H. 8. the pound of silver coin was raised to forty shillings.
■ 35 H. 8. the coin of gold was raised to forty shillings the ounce,
the coin of silver to four shillings the ounce, and coins of base money
of allay'below Sterling were coined, viz. shillings, six-pences, four-
pences, two-pences, pennies: these were decried in 5 E. 6. and the
shilling reduced to nine-pence, and after to six pence. (y)
30 Octob. 5 E. 6. Silver sterling coin inl)ansed to five
[203] shillings the ounce, and so proportionably ; and coins of fine
gold, a whole sovereign was thirty shillings, an angel ten-
shillings, and base money to pass as before.
2 Eliz. The base money was called in and brought to the mint
and reduced to Sterling and new coined, and the dross given to re-
pair the highways,
16 Novemb. 2 Jac. By proclamation the new coins of gold and
silver then made, together with their impressions, inscriptions, weight,
and values were proclaimed; and 23 Novemb. 9 Jac. per proclama-
tion the coins of gold are inhansed, r/^r. thirty shillings to thirty-three
shillings, twenty shillings to twenty-two shillings, fifteen shillings to
sixteen shillings, ten shillings to eleven shillings, five shillings to five
shillings and six-pence.
Upon these variations these things are nevertheless observable,
First, That the old Sterling gold is this, that one pound of Sterling
gold contains twenty-three carets three, grains and a half of fine gold,
the rest to make it up twenty-four carets is of allay of copper. Se-
condly, That the old standard oi Sterling silver is, that every pound
weight of Sterling silver consist of eleven ounces two penny weight
of fine silver, and eighteen penny weight of allay of copper. Thirdly,
That this rate of *S'/er//«^gold and silver hath most plainly coiuinued
to be the standard of English gold and silver coin, at least from the
time o{ Henry III. until this day in jGn^/an^/ without any considera-
ble alteration, saving that base money, which was stampt in the time
o{ Henry VIII. and then reduced to a lower valuation by Edward
VI. and after re-established by Edward VI. to its former value.
Fourthly, That, as well in England diS Ireland, there hath been im-
basing of the species of money, as appears in these two instances in
the time of Henry VIII. and Edward VI. which are yet the only
instances that I find of that nature in England. Fifthly, That queen
Elizabeth decried by proclamation all tliat base money, which was
in use in the time of her father and brother, and ever since that pro-
(y) Dyer 82.
HISTORIA PLACITORUM CORONiE. 203
clamation, viz. 2 Eliz. the true old Sterling standard both of gold
and silver hath been the only standard of the English current money.
Sixthly, That all ho the standard of Stey^ling hath with great
constancy obtained in England, yet the denomination or ex- [ 204 ]
trinsic or imposed value hath varied according to the plea-
sure of the king both as to gold and silver coin, as appears by what
goes before ; for in Edward I's time the ounce of Sterling silver was
twenty pence, the pound twenty shillings or two hundred and forty
pence ; in Edward UVs time the pound of Sterling was three hundred
pence; in the time of Henry V. and so downward to Edward W.
three hundred and sixty pence, or, which is all one, thirty shillings;
in the time of Edward IV. the pound of silver was thirty-seven shil-
lings and sixpence; in 35 H. 8. the pound of Sterling silver was
forty shillings ; in 5 £. 6, and so down to this day the ounce of silver
five shillings or sixty pence, and the pound of Sterling silver three
pounds or seven hundred and twenty pence, which in Edward Ps
time was only two hundred and forty pence, which now is thrice as
much as then it was. Seventhly, That I find rarely any proclama-
tion for the setting of the rate of new coin, but only as before, when
the denomination of wliat is in being is inhansed, or abated, or re-
called; so that the indenture of the mint and common reputation is
that, which must try what is English money. Eighthly, That I
never find either in the indentures of the mint or any proclamation
the stamp, impression, or inscription described, unless in that of king
James, because the stamps are agreed upon between the king and
the master of the mint, and delivered to him by the king, or his
warrant either of the great seal, privy seal, signet, or secretary
of state.
CHAPTER XVIII. [205]
CONCERNING THE ADULTERATION OR IMPAIRING OP COIN, AND THE
ANTIENT MEANS USED TO REMEDY IT.
The decays or impairment of coin is either in weight or allay, the
former may happen by some abuse of the moniers or minters; or by
the subtiliy of clippers, washers and other impairers of coin ; the
latter, viz. impairment in allay, can only happen either by the dis-
honesty of the moniers or minters, or by the counterfeiting of coin.
Antiently, all money was paid in number, namely so many pieces
made a pound, and this was the common reservation and account of
all farms, and the estimating of accounts, vicecumes A. reddit compo-
tuni de 100/. numero, or in thesanro 100/. niimero.
But this did not answer all intentions, for the money that was
paid in, might be dipt, or otherwise rendered light, or might be
counterfeit, or of base allay.
For. remedy whereof there was practised these three methods of
205 HISTORIA PLACITORUM CORONA.
rectifications of payments at the exchequer, that the king might not
be deceived, and these were successively used in the excliequefy
which we may read Gervafi. Tilb. Lib. I. supra guibus.
1. Solutio ad sca/am, which it seems was a dish or measure,
whereby they measured their money, as well as told it, for that is
llie proper signification of scula: but in process of time this was
turned into a measure of money, which was an addition of six-
pence for every pound, to avoid the trouble of that probation,
whereby an hundred pounds mimero amounted to an hundred
pounds and fifty shillings ad scalam; and so we have frequently in
the old pipe rolls of Henry II., Richard I., king John, &c. in the
sauro lOOl, ad scalam.
2. Solutio ad pensum, which was the answering of every
r 206 ] pound of money by weight of a pound weight troy, for ia
those times the libra argenti com d^xA or was to answer a
pound weight troy, and therefore the payer was to make it good of
that weight by answering the full weight; this gave the frequent
title of the old pipe-rolls, also in thesauro 100/. ad pensum.
But altho this solutio ad scalam or ad pensum^ especially both
together, did give some help against the defect of coin in weight, as
by clipping, washing, or the like, yet it did not help as to adulterate
money of baser allay than the standard: Therefore,
3. There was found out in the time of Henry II. a third trial,
namely trial by fire or combustion, and if it were of the just allay
it was allowed, if below the allay the payer was to make it good,
and hence he was said dealbare Jirmam ; and hence grew quickly a
difi'erence between reservations and payments of so much money
7^^m^t?/'o, and so much money blafic.
A reservation of so much money generally was intended of so
much niirnero, as if a pound were reserved, it was in effect but
twenty shillings in pecuniis numeratis ; but if it were expressly-
said so much money blanc, then it was answered in blanc money,
but yet with this difference, that if a farm were letten and so much
rent generally reserved, it should be intended so much numero, in
pecuniis numeratis; but if a franchise or liberty were granted, and
so much rent generally reserved without sayiiig blanc or numero, it
Was commonly intended blanc, unless expressly said reddendo so
much money numero, and therefore in such a case the former was
bound dealbare Jirmam, that is, to answer so much as would make
his payment to be so much good in fine silver, or very near it at
least, Gervus. Tilb. Lib. II. cap. quid sit, quosdam fundqs
dari blanc, quosdam numero.
And therefore upon all the antient accounts in the pipe, made by
the sheriff, we shall find some of his accounts of rents to run mimero,
some of them to run blanc, viz. Jirma comitatus numero, <§• firma
comitatus blanc, according to the variety of their reserva-
("2071 tions or the things out of which they are reserved; now
what the proportion was, between so much money blanc
HIST0RIA PLACITORUM CORONiE. 207
and so much money nurnero in those antient times, or what this
blanc money was, is worth the inquiring.
I have formerly thought that blanc money was nothing else but
Sterling, and that dealbare firmam was no more, than to reduce
money to the true allay oi Sterling ; but upon consideration I think
blanc money was truly so much tine silver without any allay, and
that the true allay of Sterling silver or the antient standard was
twelve penny weight only of copper to every pound weight of
silver; and tlierefore he, that upon his reservation was to pay one
hundred pounds of blanc money, was to answer to the king upon
every pound of Sterling money one shilling to countervail the value
of the allay of copper in every pound weight troy of silver.
And hence it is, that the farms of most corporations antiently let
with liberties, if one hundred pounds per annum were reserved,
usually answered one hundred and five pounds, the five pounds
being to answer the allay of one of copper in the whole quantity.
21 H. 3. in compoto comitatus North' ton summa totalis 102/. 3.?.
Id. de quo 4/. \is. 4d. blanc, quae sunt extensae ad 4/. 13s.. 9a?. subtra-
huntur ad perficiendum corpus comitatus & remanet 97/. 13^. lO^.(a)
de quibus respondet de proficuo in magno rotulo.
Clans. 19 H. 3. p. 1. w. 2. Sciatiis quod pardonavimus dilectse
& fideli nostrse J2. comitissa3 Pembroch centum triginta & quinque
libras blanc, (\\\^ extensse sunt ad 141/. \5s.
13 E. 3. m compotu Bedford & Bucks, Nicholaus Basselew IS/.
45. 4^. ninnero pro 111. Is. blanc.
That of 19 H. 3. exactly answers twelve pence per pound, which
amounts to six pounds fifteen shillings, and added to one hundred
thirty-five pounds make just one hundred forty-one pounds fifteen
shillings.
And the other estimate is very near the same account, bating the
difficulty of small fractions, four pounds nine shillings and
four pence, with the adding of twelve pence for every pound [ 208 jj
to make it Sterling, amounts to about four shillings and six
pence, which added to four pounds nine shillings and four pence
make four pounds thirteen shillings and ten pence; so the allay of
Sterli}ig at that time seems to be twelve pence of copper to every
pound of silver.
The sum therefore is, 1. That blanc ferme ox blanc money was the
estimate of money in pure silver without allay, and accordingly it
was to be answered, viz. one hundred pounds blanc was to answer
one hundred and five pounds numero. 2. That di ferme or sum of
money numero was so much Sterling money according to the stand-
ard of those times. 3. That the standard of Sterling money in those
times was finer than it hath been since the time of Edward I. name-
ly Sterling was then eleven ounces eigiit penny weight finer silver,
and twelve penny weight of allay. 4. That when at the exchequer
they burnt the money to make assay of it, in case twenty shillings
(a) This should be 97/. 9s. lOd.
208 HISTORIA PLACITORUM CORON.^.
numej'O were reserved, it sufficed if it held the allay of Sterling, vi^.
eleven ounces, eight penny weight of pure silver, and twelve penny
weight of allay ; but if it were reserved 6/ffnc, tlien tho good Ster-
ling vyas brought to the test, yet it went for less than Sterling by
twelve penny weight in every pound, and therefore they were to add
five pounds in the hundred to make it up blanc. 5. But when this
probation grew troublesome, and Sterling money was well estab-
lished, then they, that were to pay one hundred pounds blanc, paid
one hundred and five pounds Sterling, as the common estimate of
blanc money: it seems that in king John's time the standard of »S7er-
ling money was far lower and worse, than at any lime before or
after, especially towards the latter end of his reign.
The borough of f'Fich was antiently from the conquest till 17 Jo-
hann. held at the yearly rent of eighty pounds per annum blunc,
which was answered by the sheriff in the times of Henry II. and
Richard I.
7 Johann. the king granted the borough of Wich to the town at
the farm rent of one hundred pounds Sterling: in the pipe-
~\ 209 ] roll of 24 H. 3. homines de Wico reddunt compotiim de 100/.
numero, pro 80/. blanc, which imports these sums to be
equal, and afterwards 43 H. 3. homines c?e Wico reddunt compotum
deSOl. bhuic, qux sunt extensx ad S-il. and in 17^. 3. this eighty-four
pounds was raised to eighty-nine pounds five shillings numero upon
the extent, \M\\\c\\ferme of eighty-nine pounds five shillings they have
ever since answered; whereby it appears the standard of iS/er///?^
was but low in king John's time, for eighty pounds blanc was in
his charter estimated at one hundred pounds Sterling: again it was
high in 43 H. 3. viz. after the rate of twelve penny weight of allay
in a pound of fine silver; for there, eighty-four pounds Sterling \s
rated to be eighty pounds blanc; and in Edward III. the standard
was lower, than twelve penny weight of allay, viz. above tweniy-
four penny-weight of allay and more in a pound weight of fine
silver; but afterwards raised to eighteen peimy weight of allay to-
wards the latter end of his reign, which hath hitherto continued as
the true standard of Sterling silver.
These curiosities, tho they be not much in use at this day, yet they
are fit to be known for understanding the old rolls.[l]
[1] By the 2 Will. 3. c. 34. sects. 4. S^ 5. it is felony, with transportation or imprison-
ment, to colour, file, alter, or impair the gold or silver coin. See Rose, on Coin. 19.
By the Act of 21 April, 1806, ch. 49. sect. 3. if any person shall fraudulently and for
gain's sake, by any art, way, or means whatsoever, impair, diminish, falsity, scale, or
lighten the gold or silver coins, which have been, or which shall hereafter be coined at
the mint of the United States; or any foreign gold or silver coins, which are by law made
current, or are in actual use and circulation as money within the United States, every per-
son so offending shall be deemed guilty of a high misdemeanor, and shall be imprisoned
not exceeding two years, and fined not exceeding two thousand dollars. 2 Slats, at
Larse. 405.
By the Act of 3 March, 1825, ch. 65, sect. 24. if any of the gold or silver coins which
shall be struck or coined at the mint of the United States, shall be debased or made
worse, as to the proportion of fine gold or fine silver therein contained, or shall be of Jess
weight or value than the same ought to be, pursuant to the several acts relative thereto,
HISTORIA PLACITORUM CORONA. 209
through the default or with the connivance of any of the officers or persons who shall be
employed at the said mint, for the purpose of profit or gain, or otherwise, witii a fraudu-
lent intent, and if any of the said officers or persons shall embezzle any of the metals
which shall, at any time, be committed to their charge for the purpose of being coined,
or any of tlie coins which shall be struck or coined at the said mint, every such officer,
or person who shall commit any, or either of the said offences, shall be deemed guilty
of felony, and shall be sentenced to imprisonment and hard labour for a term not less
than one year, nor more than ten years, and shall be fined in a sum not exceeding ten
thousand dollars.
By sect. 26. nothihg in this act contained shall be construed to deprive the courts of
the individual States, of jurisdiction, under the laws of the several States, over oflences
made punishable by this act. 4 id. 122.
CHAPTER XIX.
[210]
CONCERNING THE COUNTERFEITING OF THE KING's COIN WHAT IT IS,
WHAT THE PENALTY THEREOF ANTIENTLY, AND WHAT AT THIS DAY.
Having taken this compass I now descend to the offense itself, where-
in I shall consider, 1. What is the coin or money of the i<ing. 2. What
a counterfeiting tfiereof. 3. What the punishment before this statute.
4. ^yhat the punishment since this statute.
I. What shall be said the king's money.
. The money of a foreign kingdom is not the king's money within
this act, and therefore at common law the. counterfeiting thereof was
only punishable as a cheat; and now by the statute of 14 E/iz. cap. 3.
it is made misprision of treason to counterfeit any foreign coin of gold
or silver, tho not made current here by proclamation. [1]
The money of a foreign kingdom made cnrreiU by proclamation,
tho it be now, as to all civil respects, the .proper money of this king-
dom, yet, as to the crime of treason, it was not the king's money
within this act.
And therefore a special statute was made,t^/z. 1 Mar. cap. 6. that
if any person falsely forge or counterfeit any such kind of coin of
gold or silver as is not the proper coin of this realm, and is or shall
be current within this realm by the consent of the queen, her heirs
or successors, then such offense shall be judged high treason [2]
This consent cannot be but under the great seal, viz. by proclama-
tion and a writ under the great seal annexed thereunto, or some
other sufficient notification under the great seal ; and it must be of
money of gold or silver, which I take to be a denomination ex
majore parte, if it be such a foreign coin as is, for the most part, of
gold or silver.
But even the counterfeiting in copper or brass gilt, or in
tin or alchymy, if the exemplar itself be of gold or silver, is [211 ~\
within this act of 1 Mar. cap. 6.
If the coin of /re/ano'[3J doth not substantially differ in the signa-
[1] Misdemeanor, by the 43 GfO. 3. c. 13», in the cas^ of copper or mixed metal coin.
[2] Felony and transportation for seven years, by the 37 Geo. 3. c. 126.
[3] As to the counterfeiting of the coin oi' Ireland, see 1 East, P. C, 150.
211 HISTORIA PLACITORUM CORONA.
tiire or impression from the coin of England, the counterfeiting of
that money here in England seems to be a counterfeiting of the
king's coin here in England ; but if the stamp or impression bear
no such resemblance, as is easily discernable, then it is considerable,
whether it be a counterfeiting of the king's coin here, for Ireland is
a distinct kingdom from England, tho part of the dominions of the
crown of England.
Yet it seems that it is treason within the act of 25 E. S, 1. Be-
cause the words of the statute ari3 sa monoye, and not specially the
money of England, and money coined by the king's authority in
Ireland is sa monoye, tho it be not the current money of England.
2. Because by the express words of the statute of 25 Eliz. the clip-
ping of coin of this realm, or any the dominions thereof, is enacted
to be treason ; it is not to be supposed that the parliament would
make the clipping of Irish coin treason, unless the counterfeiting
thereof were treason ; and with this the resolution of the case of
mixt monies in Sir John Davys'' s reports agrees, viz. that the imbased
coin stampt for Ireland is lawful money for England within the
condition of a bond for payment of money in Ireland.[4']
What shall we say concerning the farthings and halfpence of cop-
per newly minted in England, and proclaimed as before to be current
money, is the counterfeiting thereof treason.
It is true, in antient proclamations for farthing-tokens it was not
usual to be, that it should be current money, but only that it should
be used as tokens, and the pimishment of counterfeiters was either
in the star-chamber, or by information or indictment, and fine and
imprisonment in the king's bench.
And yet it seems to me, that this proclamation makes it not the
king's money within this act of 25 E. 3. 1. Because it is so made
only to a special purpose, namely in receipts and payments under
sixpence, and not otherwise. 2. Because here is no dispen-
[212] sation or non obstante of the statute of 25 E. 3. Again,
when by the statute of 25 E. 3. cap. 13. it is enacted, that
the money of gold or silver which now runneth shall not be impaired
in weight or allay, we can hardly think it ever intended that the
copper money should be that money, which should be intended
within the act made at tlie same parliament touching treason; but
qiisere /«/wew.[5]
[4] By the act of 3 March, 1825. ch. 65. sect. 21. it is enacted, That if any person or
persons shall falsely make, forge, or counterfeit, or cause or procure to be falsely made,
iforged, or counterfeited, or willingly aid or assist in falsely making, forging, or counter-
feiting any coin in the resemblance or similitude of any copper coin which has bpen or
hereatler may be coined at the mint of the United States, or shall pass, utter, publish, or
sell, or attempt to, pass, utter, publish, or sell, or bring into tlie United States from any
foreign place, with intent to pass, ultcr, publish, or sell as true, any such false, forged, or
counterftitcd coin with intent to detraud any body politic or corporate, or any other per.
son or persons whatsoever; every person so oflending shall be deemed guilty of felony,
and shall on conviction thereof, be punished by fine not exceeding one thousand dollars,
and by imprisonment and confinement to hard labour, not exceeding three years. 4 Stats,
at Large, 121.
[5] Sy the 2 Will. 4. c. 34. s, 12. it is made felony, with transportation or imprison-
HISTORIA PLACITORUM CORONA. 212
If money be decried and varies signally from the stamp and
impression in the coin that is commonly allowed, this is not money
within this act, for it hath lost its denomination and legitimation by
the king's proclamation. (a)
The money of an usurper bearing his stamp and effigies and
inscription, is the king's money in the time of the succeeding rightful
king, till it be recalled by proclamation. If, upon the evidence
against any counterfeiter of the king's coin, tho it be but of a late
coinage or impression, it comes in question whether the coin that is
counterfeited were the coin of this kingdom, it is not necessary to
produce a proclamation to prove its legitimation for these reasons;
1. Because where there were proclamations of coin they are for the
most part lost: if we should be put to prove a proclamation for the
coins of queen Ma?'7/,qneen Elizube/h, where shou\d we find them?
2. Because in most kings times there are variations of the impres-
sions without any proclamation, or so much as a new indenture
between the king and the master of the mint. 3. Because there are
very few proclamations, except that before-mentioned in king James's
time, that express any more than the weight and allay, but the
impression or effigies is rarely, if at all, expressed, and so such pro-
clamation would import little to ascertain the effigies or stamps ;
and for the same reason the indenture of the mint is not absolutely
necessary, tho in some cases it may be useful. 4. Because especially
in antient coins ex diuttirnitate temporis omnia pncsumuntur rite
acta, if proclamation or indenture be necessary, it shall be presumed
in length of time, as a licence of appropriation shall be presumed by
long continuance, tho not shewn.
The question therefore, whether the coin that is counter-
feited be the coin of this kingdom, is a question of fact, [ 213 "]
which upon evidence of common usage, reputation, S,'C. may
be found to be Bng/ish coin, tho no proclamation of it extant.
But it may be of some use in case of newness of coin to produce
the indentures, or the officers of the mint, or the stamps here used
for the coin, and the like evidence of fact.
But as to foreign coin legitimated here, it seems necessary to shew
the proclamation, together with the proclamation-writ, or a remem-
brance thereof; and this is expressly required by the statutes of 5 &
IS Elizi for impairing or clipping foreign coin.
(a) For this reason when the broad pieces were cried down, and the officers of the
revenue charged to take them in payment for one year after, it was thoujrlit necessary
by a special act of parhament 6 Geo. II. cap. 26. to make the counterfeiting- of them
during that year treason.
ment at the discretion of the Court, 4.0 counterfeit, or knowingly to make or mend, buy
or sell, or have in possession any instrument for counterfeiting, or to buy, sell, receive,
or put off any counterleit, at a lower value than its denomination imports, of the current
copper coin. And to tender, utter, or put off any counterfeit current copper coin know-
ing tlie same to be counterfeit, or to be possessed of three or more pieces of counterfeit
current copper coin, knowing the same to be counterfeit, and with intent to utter or put
off the same, are misdemeanors, and punishable with imprisonment.
VOL. I. — 24
213 HISTORIA PLACITORUM CORONA.
II. I come to the second consideration, what is a counterfeiting
witliin this law.
And before I come to particulars it must be remembered, that the
misfeasances concerning coin refer to two sorts of persons; Jirst, to
such as are authorized either by their office, or by charter, or by cus-
tom to coin money; moneiarii, moneyers, minters; or secondly,
those who do counterfeit, or take upon them the stamping of coin
■without such authority, counterfeiters, clippers, washers, Sj-c.
Touching the former of these 3 H. 7. 10. (Z>) Si ipse, qui facit
monetam in Jinglid authoritate regia infra turrim London vel alibi
in Jlnglia vel Calicia, iliam facit minus in pondere per dimidium
ordinationis antiqui ponderis, &c. vel falso metallo, est proditio, &
tamen ipsi, qui illam monetam utterant ligeis domini regis infra
Jingliam non sunt proditores nee proditio, sed misprisio.
J3ut it is not every mistake in weight or allay, that chargeth the
moneyers with so high a crime as treason, for the master is charge-
able by his indentures to a fine and ransom for some mistakes of this
nature; but it must be a wilful gross proditorious doing it, for the
indictment runs froditori^y and so it must be proved, for it is difficult
for the best artist to make every piece of the precise
[ 214 ] weight.
Touching others that either counterfeit or imbase the
coin.
First, there must be an actual counterfeiting, for a cornpassing,
conspiracy or attempt to counterfeit is not treason within this statute
without an actual counterfeiting.
But if many conspire to counterfeit, or counsel or abet it, and one
of them doth the fact upon that counselling or conspiracy, it is treason
in all, and they may be all indicted for counterfeiting generally within
this statute, for in such case in treason all are principals.[6j
{h) pi. 3.
[6] But since the late Act of Parliament, only the party who actually counterfeits
would be the principal felon, and the otliers accessories before the fact. Archb.CP.Ald.
" Wliile 1 declare that this doctrine contradicts every idea I had ever entertained on
the subject of indictments, (since it admits tliat one case may be stated, and a very dif-
ferent case may be proved,) I will acknowledge that it is countenanced by the aulliorities
adduced in its support. To counsel -or advise a treasonable assemblage, and to he one
of that assemblage, are certainly distinct acts, and therefore ought not to be charged as
the same act. Tlie great objection to this mode of proceeding is, that the proof essen-
tially varies from the charge in the character and essence of the offence, and in the tes-
timony by which the accused is to defend himself. These dicta of Lord ifaZ?, therefore,
seem to be repugnant to the declarations we find every where that an overt act must be
laid, and must be proved. No case is cited by Hale in support of them, and I am
strongly inclined to the opinion, that had the public received his corrected, instead of his
original manuscript, they would, if not expunged, have been restrained in their appli-
cation to cases of a particular description. Laid down generally, and applied univer-
sally to all cases of treason, they are repugnant to the principles for which Hale
contends, for which all the elementary writers contend, and from which courts have in
no case, eitiier directly reported or referred to in the books, ever departed. These prin-
ciples are, that the indictment must give notice of the offence; that the accused is only
bound to answer the particular charge which the indictment contains, and that the overt
HISTORIA PLACITORUM CORONiE. 214
How far a receiver is a principal, videbimus infra Co. Pla. Cor.
13S. Bjjer 296.
If t/2. counterfeits, and by agreement before that counterfeiting B.
is to take off and vent tiie counterfeit money, B. is an aider and
abetter to such counterfeiting, and consequently a principal traitor
within this law ; but if B. knowing that ^. hath counterfeited money,
put off this false money for him after the fact, without any such agree-
ment precedent to the counterfeiting, he seems to be all one with a
receiver of him, because he maintains him. [7]
U ,/9. counterfeit money, and B. knowing the money to be coun-
terfeit vent the same for his own benefit, B. is neither guilty of trea-
son nor misprision of treason, but it is only a cheat and. misdemeanor
in him punishable by fine and imprisonment.
But if B. know that ^. counterfeited it, and doth neither receive,
maintain, or abet him, but conceals his knowledge, this is misprision
of treason ; and with this difference the book of 3 H. 7. above-cited
is to be understood, and so it was ruled upon debate at the sessions
at Newgate Car. 2. ex libro Bridgman.{c)
Jl. fashions stamps for the counterfeiting of money, but he is dis-
covered and apprehended before he hath actually counterfeited it ;
this is no treason within this statute, (of) for tho he hath counterfeited
the stamps, yet he hath not counterfeited the money of England.\p\
r </?. counterfeits the king's money, but never vents it; this
is a counterfeiting, and treason within this statute, and so it f 215 l
hath been ruled Co. P. C. p. 16. [9]
t,'?. counterfeits the coin of this kingdom or any foreign coin of
silver or gold of any foreign kingdom, and this counterfeiting is in
another metal, as tin, lead, alchymy, copper gilt or silvered over, yet
the former is treason within the statute of 25 E. 3. and the latter
within the statute of 1 Mar. If there be a lawful coin of this king-
dom, and ^. doth counterfeit it in a considerable measure, but yet
with some small variation in the inscription, effigies, or arms, to the
intent thereby to evade the statute, yet this is a counterfeiting of the
(c) Aus. 16 Car. 2. in the case of Richard Oliver, Kel. 33.
{d) 1 Rich. 3. 1. but it is treason by the statutes of 8 ^ 9 T^'. 3. cap. 25. and 7 Ann.
cap. 25.
act laid, is that particular charge." Per Marshall, C. J., 2 Burr's Tr. 432. See post. 228.
1 East, P. C. 127.
[7] The offender would now be an accessary after the fact, and as such, by sect. 18
of the 2 Will. 4. subject to imprisonment for two years; though the proper course would
be to proceed against such an ofFeuder for the substantive offence of uttering. Rose, on
Coin, 6.
[8] By Sect. 10, of 2 Will. 4. c. 34, making, mending, or having possession of any
coining tools, is felony, with transportation. See the cases in Arch. C. P. 481.
Having tools for coining in possession, with intent to use them, held to be a misde-
meanor at common law. 1 East. P. C. 172.
[9] It was no offence at common law, to have possession of counterfeit coin with intent
to utter it. R. v. Stewart. Russ Sf Ry. 288. R. v. Heath, id. 184. but to procure it with
that intent was a misdemeanor. R. v. Fuller, id. 308.
215 HISTORIA PLACITORUM CORONA.
king's money, and that intent doth unquestionably appear, if he vent
it as true:[10] vide siipra de privalo signetto. 16 Jac.{f)
The clipping, washing, or impairing, <§*c. of foreign coin made cur-
rent by proclamation most certainly was not treason by the statute
of 25 E. 3. but was made treason de novo by the statute of 5 <§• 18
E/iz.
But whether the clipping, washing, or impairing the proper coin
of this realm for lucre or gain were treasons within this statute of
25 E. 3. or not, is a question that deserves consideration, which, tho
it be now settled by those statutes to be treason, yet it is of moment
to be known; if it were and continues treason by the act of 25 E. 3.
then the judgment is only to be drawn and hanged ; if it be a new-
made treason, then by my lord Cokeys opinion the judgment must be
to be hanged, beheaded, and quartered, as in treason for compassing
the king's death. Co. P. C. p. 17.
I will therefore give the history of this business of wasfung, clip-
ping, <§'c. ab origiyie, from the time of the statute of 25 E. 3. for the
history of former times at common law will be given in the next
section.
It appears by the record of M. 31. E. 3. coram rege rot. 18, 55.
Bucks, cited by Co. P. C.p. 17. within six years after the statute of
25 E. 3. that for counterfeiting and resection of the king's
[ 21 6 ~\ coin tlie abbot of Mussenden was adjudged to be drawn and
hanged, but not quartered.
By the statute of 3 H. 5. cap. 6. clipping, washing, and filing of
the money of the land is declared to be treason, and the offenders to
be traitors, and shall incur the pain of treason; this was made to settle
the doubt, and not purely as a new law.
The petition, upon whicli this act was made, is more fnll than the
act, as it is printed, Rot. Pari. 3 H. 5. part 2. n. 40. "Item pryont
les commons, qe come devant ces heures grand doubt & awerestee
ad este, le quelle le tonsure, loture, filinge, & autre fauxisme de vostre
monoy duissent estre adjugge treason ou nient, a cause qe null men-
tion ent est fait en le declaration des articles de treason faits en le
parlement de vostre tresnoble besaiel Ian de son raigne 25. Plese a
vostre royal majestee de ordeiner, declarer, & determiner en cest
present parlement par authority dicol, qe ceux, qe tondent, loient,
iilent, ou ascun autre fauxisme facent de vostre mony, soient ad^^
jugges traytors, & encurgent le pain de treason, si bien come ceux
( / ) Robinson's case, 2 Rol. Rep. 50.
[10] In a prosecution for passing counterfeit money, the jury should be satisfied that
the resemblance of the forged to the genuine piece is such as might deceive a person
using ordinary caution. U. S. v. Morrow. 4 W. C. C. R. 733. In R. v. Harris et al.
1 Leach. 165.it was held that the- coin counterfeited did not bear a sufficient resem-
blance to the real coin to make the offence complete. But the 3d sect, of the Act of
2 Will. 4. c. 34. declares that the offence shall be deemed complete, although the coin
piade or counterfeited be not in a fit state to he uttered, or the counterfeiting of it has
not been finished or complete. See R. v. Wilson, 1 Leach. 285. R. v. Welsh id. 293.
R. V. Varley. 2 W. Bl. 682. 1 East, P. C. 64.
HISTORIA PLACITORUM CORONA. 216
qe apporfent faux money en Enghterre. sachant la estre faux, & qe
cest declaration si bien soy extende al tieis tonsure, loture, & faux-
isme faits avant ccs heures come a faire en temps avener. Ro. Quant
a le loture, tonsure & fileigne soit il declare pur treason."
Nota^ A retrospect desired, which was not usual, unless the law
had held it treason before.
By the statuteof 4 //. Leap. IS. counterfeiting or forging of foreign
coin current here is enacted to be treason, which before was neither
felony nor treason.
By the statute of 1 E. 6. cup. 12. it is enacted, that there be no
other treason nor petty treason, but what was ordained by the statute
of 25 E. 3. or by that act; and after certain new treasons enacted
there is a proviso, that this act extends not to repeal any act of par-
liament concerning the counterfeiting, forging, cHpping, washing or
filing any coin of this realm, or any coin of other realms made cur-
rent here, or the bringing into the realm any counterfeit coin.
This proviso was absolutely necessary in relation to the
treason in counterfeiting foreign coin contrary to the statute [ 217]]
of 4 H. 7. cop. 18. because a new treason, but whether ne-
cessary in relation to clipping or impairing the coin of England
declared to be treason by the statute of 3 H. 5. may be doubtful upon
what herein after follows, but certainly was very fit and convenient
to avoid the question.
By the statute of 1 il/ar. cap. 1. it is enacted, that no offense being
by act of parliament or statute made treason, petit treason, or mis-
prision of treason, by words, writing, or cyphering, deeds, or other-
wise howsoever, shall be adjudged to be high treason, petit treason,
or misprision of treason, but only such as be declared and expressed
to be treason, petit treason, or misprision of treason in or by the act
of parliament of the twenty-fifth year of king Edward III. concern-
ing treason, nor any pains, penalty or forfeiture to ensue upon any
offender in treason, petit treason, or misprision of treason, than such
as are ordained by that statute; and all offenses made felony or prae-
munire since 1 H. 8. not being felony or within the statutes of
praemunire before, and all articles, (§'c. concerning the same are re-
pealed.
And yet it appears by the statute of 1 <5* 2 Ph. <§' M. cop. 11. that
then, notwithstanding the astute of 1 Mar. cap. 1. they did take the
impairing as well as forging or counterfeiting the king's coin to re-
main treason; for, by that statute of 1 <§• 2 P. <S' M. cap. 11. that
makes the importation of foreign counterfeit coin to be high treason,
it is provided, that any that shall be accused of the offenses contained
in the same statute, or any other offense concerning the impairing,
counterfeiting or forging- of any coin current within this kingdom,
shall be indicted, arraigned, tried, convicted and attaint by such like
evidence, and in such manner and form as hath been used in Ens;-
land at any time before the first year of the reign of king Ed-
leard VI.
So that it seems they took impairing of any coin current to be a
217 HISTORIA PLACITORUM CORONA.
treason in force, but on the other side it may be said, so they took
also the forging of any foreign coin current to be treason, when as
yet the statute of 4. H. 7. concerning forging of foreign coin 'made
current stood repealed by 1 E. 6. but it is plain that no such
r 218 ] consequence could be made, for by the statute of 1 Mar.
sesfi. 2. cap. 6 forging of foreign coin made current here is
enacted to be treason ; so that as to the point of foreign coin made
current here, tho the statute of 4 //. 7. cap. 18. stood repealed, yet
1 Mar. cap. 6. stood in force at the time of the making of the statute
of 1 4' 2 P. <§' M. cap. 11.
Then ensues the statute of 5 Eiiz. cap. 11. which reciting in ex-
press words, that the statute of 3 H. 5. concerning clipping, Sec is
repealed by 1 Mar. cap. 1. and the mischief that happens thereby,
enacts, "That if, after the first day of Alai/ next, clipping, washing,
rounding, or filing for wicked lucre or gain's sake any of the proper
monies or coins of this realm or the dominions thereof, or the monies
or coins of any other realm allowed and suffered to be current within
this realm, or the dominions thereof, or that hereafter at any time
shall be lawful monies or coins of this realm or of the dominions
thereof, or of any other realm, and by proclamation allowed and
suffered to be current here by the queen, her heirs or successors,
shall be taken, deemed, and adjndged by virtue of this act to be trea-
son, and the offenders, their counsellors, consenters and aiders shall
from and after the first day of 3Iai/ be deeemed traitors, and suffer
pain of death and forfeit their goods, and forfeit all their lands during
their lives only.
" That all, that by charter have lands or goods of traitors within
their liberties, shall have these: a proviso that this act make no cor-
ruption of blood or loss of dower."
And the act of 18 E/iz. cap. 1. declaring that the falsifying, im-
pairing, diminishing, scaling, or lightning of money was not within
the act of 5 Eliz. which ought to be taken strictly according to the
words thereof, and the like offenses not by any equity to receive the
like punishments or pains, enacts those offenses to be treason almost
iti totidem verbis with that of 5 Eliz. with the like proviso; and note
this clause in both statutes, and the offenders being lawfully thereof
convict or attainted according to the due order and course of the
laws of this realm shall suffer the pain^ of death.
These acts do, in effect, declare, that this was not treason
[ 219 ] within the statute of 25 E. 3. and that the statute of 1 Mar.
cap. 1. repealed that declaration that was made in 3 H. 5.
and gives the reason, because the law being penal ought to be taken
and expounded strictly according to the words, and the like offenses .
not by any equity to receive the like punishment, and therefore light-
ning or scaling were not within the act of 5 Eliz. and neither within
the act of 25 E. 3. against counterfeiting the coin.
And yet it is observable, that those very judges, which were pre-
sent at the making of the statute of 5 Eliz. yet upon a solemn con-
sideration in fVright's case, T. 6 Eliz. Bi/er 230. did agree, that
HISTORIA PLACITORUM CORONiE. 219
the judgment in treason pro tonsurd monetse Anglise is no other but
to be drawn and hanged, and accordingly judgment was given in
that case ; and upon search of the precedents at Newgale I find,
that altho some judgments in case of clipping of money are to be
drawn^ hanged, beheaded and quartered ; yet the greater number
both of former and latter times have been only to be drawn and
hanged(g) according to the judgment in 6 E/iz.
And therefore my lord Coke, PL Cor. p. 17. tho he agree, that the
judgment for counterfeiting the coin of England is only to be hanged
and drawn, as it was before the statnte of 25 E. 3. seems neverthe-
less to be mistaken, when in the same page he saith, that if any be
attainted for diminishing the king's money upon the statutes made
in the time of queen Mary or Queen Elizabeth, because it is high
treason newly made, the olfender shall have judgment as in the case
of high treason, viz. to be drawn, hanged, beheaded, dismembred,
quartered, c^-c. for the greater number and better precedents run only
to be drawn and hanged : and so it was lately ruled upon great con-
sideration in a case in the king's bench, (A) tho perchance it is not
error, whether the one judgment or other be given.
Upon the whole matter therefore it seems to me, 1. That
altho it should be admitted, that clipping of the coin of [| 220 1
England conXinnedi treason notwithstanding the statute of
1 Mar. that yet it is, at this day, treason merely by the statute of
5 Eliz. and therefore every indictment, at this day, for clipping or
impairing, fyc. must pursue the words of the statutes of 5 <§• 18 Eliz.
and conclude contra for mam statiiti; and this, not only in the
case of clipping of foreign coin, which certainly was no treason after
1 Mar. and before 5 Eliz. but also in relation to the coin of Eng-
land; and the reason is, 1. Because this statute hath added a quali-
fication to these treasons of clipping or lightning, viz. it must be for
hccre's sake, which must be expressly laid in the indictment, but
need not have been so laid by the statute of 3 H. 5, for tho, per-
chance, it was intended, yet it was not expressed in that statute,
neither needed it then to have been in the indictment. 2. Because
in express words the statutes of 5 4' -18 Eliz. say, that it shall be
treason by virtue of this statute, which is not a bare recital as in the
beginning of the statute, that the statute of 3 H. 5. was repealed ;
but it is also an express enacting clause, which is in effect exclusive
of any other law to make it treason, but this of 5 or IS Eliz. for
these words are in both the statutes. 3, Because it extremely alters
the consequences of a judgment in treason, for here was no loss of
dower, no loss of land but during life, no corruption of blood, so that
these statutes did perfectly intend a total new establishment and
qualification of this treason.
2. That altho this be a new law, yet inasmuch as neither at com-
mon law, nor after the statute of 25 -E. 3. the treasons or ofl^enses
(o') Morgan's case, Cro. Car. 383.
(A) The case of Bellew and Norman, 1 Verir 254. 2 Lev. 98. Raym. 234.
220 HISTORIA PLACITORUM CORONA.
concerning money had any greater judgment than such as is given
in case of petit treason, namely for the man to be drawn and hanged,
the woman to be burnt, no higher or other judgment is to be given
upon the statutes of the 5th or ISth Eliz. and hence it is, that in the
statute of 25 E. 3, though it rank counterfeiting money among high
treasons, yet it ahers not the judgment that was at common law; nay
tho it be most certain, that the statute of 25 E. 3. as to some points
of bringing in foreign money be introductive of a new law, yet inas-
much as it concerns money, wherein the highest judgment
[ 221 ] at the time of 25 E. 3. was only that of petit treason, it doth
not inhanse the judgment higher; and accordingly it was
resolved upon great advice and consideration of precedents Car. 2.
Banco liegis in the case(z) for cWpp'm^ Ens^lish coin.
3. That upon any trial of counterfeiting, clipping, washing, <5'C. the
coin of England or foreign coin made current, there is no necessity
either upon the trial or the indictment of two witnesses, required in
other cases by the statutes of 1 E. 6. cap. 12. and 5 E. 6. cap. 11.
For as to the counterfeiting of money, or so much as was treason
for impairing money, by 1 <5' 2 P. <§• M. cap. 11. it is expressly pro-
vided, that no other evidence shall be requisite either npon the indict-
ment or trial than was before the statute of 1 E. 6. and as to clipping
and washing, the very statutes of 5 and IS Eliz. m express terms
require only a conviction and attainder accoy^ding to the order and
course of the law; and therefore tho the statute of 5 E. 6. cap. 11.
enact, that two witnesses or lawful accusers shall be required upon
proceeding for any treason, that now be or hereafter shall be. yet
that act is thus far derogated by those two acts, that require only an
indictment, a conviction and attainder according to the order and
course of the law generally; for tho it be held, that the statute of
1 Sf- 2 I\ S,' M. cap. 10. that enacts, that all trials of treason shall be
according to the course of the common law, doth not take away the
necessity of two witnesses upon the indictment, because that is a dis-
ti.nct thing from the trial. 14 Eliz. lord Lumley^s case, Di]. 99. Co.
P. C.p. 25. yet the words [conviction and attainder after the order
and course of the law) mentioned in the statutes of 5 4' IS Eliz. in-
clude the indictment as well as the trial, and therefore even without
the aid of the statute of \ S,^ 2 P. <§' Al. cap. 11. restores the whole
proceeding according to the order of the common law in case of clip-
ping br washiijg, as the statute of 1 <§• 2. Ph. Sf Mar. doth in express
words in case of counterfeiting.
And note, upon the statutes of 5 <§• 18 Eliz. tho Irish
r 222 ] coin be not current in England, when of a baser allay, y^t
it is the king's coin, and clipping or washing in England
the coin of Ireland is treason by those acts, for the words are the
coin of this realm, or dominions thereof, which extends to Ireland.
4. The fourth thing observable upon these statutes is, that the
act of 1 Alar. cap. 1. reducing all treasons to the standard of 25 E.^.
(i) This I take to be the forecited case oi Bellew and Norman, 1 Fen. 254.
HISTORIA PLACITORUM CORONA. 222
doth not only repeal treasons, that were newly enacted de novo, but
such acts concerning treason as were only declarative, as this of
3 ^. 5. among olhers.[l 1]
[11] The Constitution (^Art. 1. Sect. 8. c. 6.) authorizes Congress to provide for the
punishment of counterreitinor the securities and current coin; in pursuance of which,
tlie Acts of 21 April, 1806, ch. 49, and 3 March, 1825, ch. 65, were passed. By the
20 sect, of the latter, it is enacted, That if any person or persons shall falsely make,
forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or
willingly aid or assist in falsely making, forging, or counterfeiting any coin, in the re-
semblance or similitude of the gold or silver coin which has been, or hereafler may be,
coined at the mint of the United States; or in the resemblance or similitude of any
foreign gold or silver coin which by law now is, or hereafter may be made current in
the Unittd Slates; or shall pass, utter, publish, or sell, or attempt to pass, utter, publisji,
or sell, or bring into the United Slates from any foreign place with intent to pass, utter,
publish, or sell as true, any such false, forged, or counterlitited coin, knowing the same to
be false, forged, or counterfeited, with intent to defi-aud any body politic or corporate, or
any other person or persons whatsoever; any person so offending shall be deemed guilty
of felony; and shall, on conviction thereof, be punished by fine, not exceeding five thou-
sand dollars, and by imprisonment and confinement to hard labour, not exceeding ten
years, according to the aggravation of the offence.
Sect. 26. That nothmg in this Act contained shall be construed to deprive the courts
of the i-ndividual States of jurisdiction, under the laws of the several States, over offences
made punishable by this Act.
The State courts having, by permission of this Act, concurrent jurisdiction of these
offences, their legislatures have severally passed laws on the subject. But they have
hitherto generally fallen under the cognizance of the federal courts.
It has been held, that a person who takes base pieces of coin which are brought to
hira ready made, having tlie impression and appearance of real coin, though of different
colour, and brightens them so as to give them the resemblance of real coin, and render
them fit for circulation, is guilty of counterfeiting. He completes the offence, and sub-
jects thereby, to the penalties of the law, not only himself, but all who acted a part, or
were present assisting in the transaction. Rasnick v. Cammonw. 2 Virg. Cas. 356.
• Under the Conneclicut statute, aiding in the act of counterfeiting, is within both the
letter and reason of the statute, as much as assisting in making the implements. State
V. Stetson, Kerby, 52. " -
An indictment does not lie for forging a Spanish head pistareen, as it is not a coin of
Spain made current by law in the United Stales. U. S. v. Gardiner, 10 Peters, 618.
In an indictment for uttering counterfeit coins, it is sufficient to describe them as
" made and counterfeited" to the likeness and similitude of the good, true, and correct
money and silver coins curreniiy passing in the State, and commonly called Spanish
dollars. Fight v. State, 7 Ham. {Part 1) 180. ^
Proof that the defendant had implements for coining in his own house, does not go to
establish the fact of the defendant's knowledge that the dollar, for passing which he was
indicted, was counterfeit. Slate v. Odel, Const. Rep. 758.
On an indictment for passing a counterfeit dollar, proof of the admission of the defend-
ant, that he had made and passed other counterfeit dollars, is inadmissible. Jd.
Having a crucible in possession is not having a tool or instrument for counterfeiting
within sect. 31. of the Vermont Act against liigh crimes and misdemeanors. Allegation
in the indictment that the coins intended to be counterfeited were "current silver coins
of this State and of the United Slates," does not satisfy the words of the Act, " which
shall be made current by the laws of this, or the United States,^^ and are bad on demur-
rer. Slate v. Bowman, 6 Verm. 594.
On an information for passing a counterfeit coin, knowing it to be counterfeit, tlie
prosecutor offered evidence of the prisoner's having in his possession at the same time,
an engraved paper, having the appearance of a bank note, but not purportmg to'be signed
or. countersigned, for the purpose of showing the knowledge charged in the declaration.
It was held inadmissible. Stalker v. State, 9 Cowen, 341.
In an indictment for passing a counterfeit coin, the possession of instruments for coin-^
ing mny be given in evidence to prove the guilty scienter of the defendant. State v. An.
tonio. Const. Rep. 116. ' '■
Under the Act of Massachusetts of 1804, c. 121. sect, 6. against having in possessioa
VOL. 1.-^25
222 HISTORTA PLACITORUM CORONA.
IV. The fourth thing that I propounded to consider, is tlie history
of the punishment of counterfeiters, 4'C. of coin before the statute of
25 E. 3. and how it hath stood since.
In this kingdom and indeed in all the kingdoms the counterfeiting
of the king's money hath been in all Rges crimen lassas ?7t(/Jesl(ilis,{k)
tho in many of the old books(/) it comes under the general title of
c?;imen falsi.
But the punishment in its kind and degree hath ahnong w.? very
much varied both in relation to the nwnetarii or moneyers, that
were intrusted with the making of coin, and others, that took upon
them to counterfeit the king's coin : among the laws of king Athel-
Stan, I. 19. set down by Brompton, p. S43. Una moneta sit in toto
regni imperio, & nullus monetet extra portum, si monitarius reus
fuerit, amputeter ei manus, & ponatur supra monetae fabricam, ac-
cord Hoveden sub anno 1137. & M. Paris sub anno \\25.{m)
In the time of Henry I. it is written by Simon Dunelmensis,
p. 214: Monetarii totius Jinglise priiicipales deprehensi adulterinos,
scilicet non puros ex argento, .fecisse denarios, jussu regis simul
JVintonx congregati omnes una die amputatis dextris evir-
[223] antur; Et ibidem p. 231. Qui falsos denarios fecerit,
oculos et inferiores partes corporis perdet; a/it/ Knighton,
p. 2377. H. 1. statuit, ut fures suspenderentur, falsarii oculos &
genitalia amitterent, & ut denarii & oboli essent rotundi.(;2)
Knighton, p. 2463. " Edwurdiis primus tenuit parhamentum
apud London, fecit mutari monetam regni, quas illo tempore fuit
viliter retonsa & abbreviata, unde populus regni graviter conquere-
batur, & rex veritatem inquireus, & comperiens trecentos & plures de
illo delicto & felonia publice convicios, quorum quidam fuerunt sus-
pensi, quidam distracti & suspensi secundum delicti quantitatem et
qualitatem,& ordinavit,quod deinde 5'/er///j^w.y & quadrans deinceps
essent rotundi:" so that clipping was then held treason, or at least
felony.
After the statute of 25 E. 3. the punishnient hath been constantly
{k) By the old Roman law, Qui nummos aureos, argenteos adulteraverit, laverit, con-
flaveiit, raserit, corruj)erit, vitiaverit, vnltuve principaiu signatam monetam, praeter
adulterinam, reprobaveiit, lionestior in insulam deporlandus, iiumilioraut in metallum
damnandus, aut in crucem tollendus; and ichatever degree he was q/", ejus bona fisco
vindicaiitur: see Jul. Panli sententias receptas, Lib. V. tit. 12. §. 12. and Lib. V. tit. 25.
§. 1. Afterwards bij a law of Cotistnnline, Cudendse pccuiiioe obnoxii majesta(is crimen
semmittunt, & quicunque solidoruin adulter poterit reperiri, flammaruin exustionibus
maticipetar, Lib, IX. Cjd. til. 24. /. 2. See also Wilkin''s Ligcs Anglo. Sax. p. 59, in
notis.
(I) Bracton, Lib. III. de corona, cap, 3. § 1, Glanvil. Lib. XIV. cap. 7, Flet. Lib. I.
cap. 22.
(w) Leges] Ethelstani, I. 14. Wilk, Leg. Anglo-Sax. p. 59. See also Leges Edgari,
I. 8. Coiisiilutiones Etfulredi in Jine. Le^es Cnuti, I. 8.
(n) Wilk. Leg. Heu,l. p. 304. sab annollOS. p. 308. sub anno 1125.
ten similar pieces of counterfeit gold or silver coin, it is sufficient if the offender has
in iiis possession ten pieces of either kind of coin, tliougli not all of tlie saiiie denomi-
nation. Brown v. Comnionw. 8 Mass. 59. 71.
HISTORIA PLACITORUM CORONA. 223
to be drawn and hanged, because that was the proper judgment of
it, before the making of the statate.[12]
And altho the course hath been in treasons concerning the king's
person not to allow the privilege of clergy, yet before 25 E. 3. cap.
4. pro cle.ro it had been thought and practised iti antient time to
allow the privilege of clergy upon an indictment for counterfeiting
money. (o)
But after that statute clergy was not allowable in the case of
counterfeiting money, 19 H. 6. 47 b. Stamf. Pla. Cor. 114 b. yet
whereas in cases of treason regularly he that stands mute shall be
thereby convicted 15 E. A. 33 a. Stamf. Pla. Cor. 150 a. because
not within the statute of IVestmin. 1. cup. 12. (p) yet we have
some historical instances, that upon indictment of counterfeiting coin
the prisoner standing mute was put to pain fort ^- dure. Knighton
tempore R. 2. sub anno 13S9. before Belknap, Skipwith,
and others apud Lincoln septern falsarii monetx convicti, f 224 ]
gui simul tractifuerunt 4' siispensi, ^- quidam vicarius de
Wintringham obmutescens adjudicatus est ad poenam mutorum ;
but at this day the law is taken otherwise, and that standing mute
amounts to a conviction of the crime. [13]
And in short at this day in all cases of treason for counterfeiting
the coin of this kingdom, or of any the dominions thereof, or of
foreign coin made current by proclamation, or for washing, clipping,
sealing, impairing, or diminishing the same, tho most of these are
(o) For clergy was antiently denied only in such treasons, as were immediately
against the king's person, and therefore Co. P. C p. 16. clergy was allowed in the
case of counterfeiting the great seal. See also the case of Burdon, (P. 18. E. 2. B. R.
Rot. 25. Rex. South'ton) who was admitted to his clergy on being convicted of felony
and sedition in counterfeiting the great seal ; but in Tliorpt^s case, {T.21 E.S. Rot. 23.
Rex.) who was convicted of sedition in levying war, it was adjudged, that he could not
be admitted to his clergy: nota la diversite; but the 26 H. 8. cap, 13. takes away clergy
in all cases of treason: vide antea in nolis, p. 185 <^* 186.
{p) 2 Co. Inst. 177.
[12] The punishments under the Stat. 2 XV. 4. c. 34. are various : transportation, im-
prisonment, and fine. When imprisonment, the ID Sect. leaves it to the discretion of the
court to sentence the prisoner to hard labour, or solitary confinement. But the 7 W. 4.
^1 P"ic<. c. 9. s. 5. restrain such solitary confinement to a period not exceeding one
month at a time, or three months in the space of one year. See Sects. 20 c^T 21 of the
Act of Congress of 3 March, 1825, ch. 65, and the 3 Sect, of the Act of 21 April, 1806,
cA.49.
[13] Before the 7. & 8. Geo. 4. c. 28. s. 2, standing mute in cases of high treason
amounted to a conviction ; but by that statute, if any person being' arraigned, &c., for
treason, &c., shall stand mute of malice, or will not answer directly to the indictment,
it shall be lawful for the court, if it shall thiiik fit, to order a plea of not guilty to be
entered, and the plea so entered shall have the same effect as if the party liimself had
pleaded it.
By the 30</i Sect, of the Act of Congress of 30th April, 1790, it is enacted. That if
any person or persons be indicted of treason against the United States, and shall stand
mute or re/"use to plead, &c., the court shall, notwithstanding, proceed to the trial of the •
person or persons so standing mute, &c., as if he or they had pleaded not guilty, and
render judgment thereon accordingly.
As to the case of a person deaf and dumb, see 72. v. Pritchard, 1 C. Sf P. 303. Com. v.
Hill, 14 Mass. 297.
224 HISTORIA PLACITORUM CORONA.
made treason by new acts of parlianaent, as 1 Mar. cap. 6. 5 Eliz. cap.
11. 18 Eliz. cap. 1. yet the judgment is only for a man to be drawn
and hanged, for a woman to be burned, and so (as I said) it was
solemnly resolved.
And the reason is, because the most of these be new treasons
made by act of parliament, yet they are all in their matter concern-
ing money, wherein the judgment at common law was, as in case of
petit treason : and that judgment was not altered by 25 E. 3. iii
case of counterfeiting, which is the highest otfense concerning money,
and therefore is not to be exceeded by the intent of those statutes,
which brought lesser otfenses concerning money, as clipping, into
the same rank of offense with counterfeiting, for they are all olfenses
in pari materia, and so shall have a parity of judgment.
See the Stat. 12 Geo. 3. ch.-90. concerning standing mute and refusing to plead.
-4 "Blacks. Com. ch. vi. p. 89.
[ 225 ] CHAPTER XX.
CONCERNING TREASON IN BRINGING IN FALSE MONEY.
The next point of treason is, if any man bring in false money into
this realm counterfeit to the money of Ens;land, as the money
called Liishborough., or other like to the said money of England,
knowing the money to be false, to merchandize or niake payment in
deceit of our lord the king and of his people. [1]
Touching this point of treason these things are observable.
I. That the money in this case must be imported from a foreign
nation, for here, it is not the counterfeiting, that is the treason, but
the importing: and yet it seems by the general words of the statute
of 35 H. 8. cap. 2. the counterfeiting itself, tho out of the king-
dom, may be tried in the king's bench, or before special commission-
ers, as well as any other treason.
But at common law the counterfeiting beyond the sea seems not to
have been such a treason as could be tried here, as treason in adhe-
ring to the king's enemies might have been, and therefore the im-
porting was made treason by this act.[2]
Altho Ireland be within the statute of 35 H. 8. cap. 2. for trial of
treason in compassing the king's death or levying of war, as is be-
fore observed, and therefore as to that purpose out of the realm of
England, yet it hath been held upon the obscure book of 3 H. 7. 10.
[1] By the 6. sect, of the 2 W. 4. c. 34. it is felony, punishable with transportation or
imprisonment, at the discretion of the court, to import into the United Kingdom from be-
yond seas any counterfeit coin resembling any of the king's gold or silver coin, knowing
the same to be counterfeit. It would seem to be no offence within this Sect, to import
from the king's dominions beyond the seas, (1 Hawk. c. 17. s. 87. 1 East, P. C. 175.)
because the counterfeiting there is punishable by the laws of England. Arch. C. P. 417.
[2j See 1 East, P. C. 175.
HISTORIA PLACITORUM CORONiE. 225
that an importation of counterfeit coin from thence into England
is not treason here within that statute, principally because the coun-
terfeiting itself is punishable by the statute of 35 E. 3. which is of
force in Ireland. Co. P. C.p. 18. And the like reason holds
for the Isle of Man. Before this statute there was some [ 226 ]
difficulty what this crime should be.
In the time of king Edward I. there were three great inconve-
niences touching coin imported from foreign parts, sometimes they
imported true coin oi England, but such as was clipped, sometimes
they imported counterfeit coin like the coin oi Engknid, but of a
base allay; and most times they imported foreign coin, which yet
passed between merchants, and filled the kingdom with bad money
to the detriment of trade and the king's coinage. [3]
And to remedy these inconveniences were those three ordinances
made, called Stalntuni de moneld magnum, de monetd peirvuni,^
*drticuli de monetu; by which, searches were ordained of all coin
imported, that if any dipt money or any foreign money, other thari
of England, Ireland, or Scotland, were taken, it should be pierced
and redelivered to the owner, if it were false it should be detained,
and the bodies of such as had false or dipt money to be attached, (a)
and if suspicious, detained till he produce his warrant; that money
be received by weight; and by the second, viz. Stututiim de moneld
parvurn, that if any merchant brought in dipt or counterfeit money,
for the first offense he should lose the money, for the second he should
lose his iijoney and goods, and for the third de corporibiis siiis 8f de
omnibus bonis 4' catallis suis nobis totaliter incurratiir; that if
they were not merchants, they should pierce the dipt and counterfeit
money and send it to the exchange, otherwise in whose hands soever
such money should be found, it should be forfeited to the king: and
by articuli de monetd the several faulty coins, foreign and others,
that had obtained in the kingdom by common use are described and
decried.
By the statute of 9 E. 3. cap. 2. Item, "That no false money or
counterfeit Sterling be brought into this realm or elsewhere within
our power upon forfeiture of such money."
By an act or rather an advice. Rot. Pari. 17 E. 3. n. 15.
qe nul soit si hardy de porter fausse & malveis monoie en [227]
roialme sur peyn de forfeiture de vie & membre.
Pot. Pari. 20 E. 3. n. 15. A complaint of importation of false
money, especially the false money called Lnsheburnes, praying de
punir ceux, que sont trovez culpablez d'lapport, ou de le resceit de
eux sachant le fauxisme, par judgment come faux monyers.
Ro'. Quant a cest point de ceux, qe apportent la faux mony deins
le realme, & qe le usent per voy de merchander ent sachaiant, le roy
vo€t, quils eieut judgment de vie & de membre, come faux monyers,
(«r) See an ordinance to this purpose in tiie reign of king John Wilk. Leg. Anglo-Sax.
[3] See tlie Act of Congress of 3 March, 1825, ch. 65. sect. 20, ante, p. 222.
227 HISTORIA PLACITORUM CORONA.
solonc les leys & cnstomes de realme ; but this was never drawn np
into an act: yet Rot. Pari. 21 E. 3. n. 19. the commons desire the
penalty may stand according as was ordained in the last parHament,
and that it extend as well to the time past as to come^^i'qe mil cfiar-
tres de pardon soient grant de dit fanxime 8f treason: they were
answered, that the justices should be assigned to enquire of the time
past and to come after this act, and to do right, and that pardons be
not granted cy legerment.
By which it appears, that it was never settled to be treason till 20
E. 3. and even from that time,tliere was but a faint proceeding ugon
that offense.
But this statute of 25 E. 3. was that, which madeihe final sissttle^
ment in this point.
But this makes only the apporters themselves, their aiders, abet-
tors, and assistants, traitors, not those, that receive it at the second
hand; and this stands with reason and is consonant to the statute of
moneta before cited, which rendered the merchants offense punish-
able at the third time with death, but subjected others only to loss of
the money, if not pierced and carried to the exchange.
II. That it be counterfeit after the similitude of the money of
Englaii d, oihexw'xse it is not treason : the bringing in of money coun-
terfeit after the similitude of foreign coin made current here by pro-
clamation is not treason within this act ; but by the statute of 1 & 2
Ph. <§• Mar. cap. 11. it is enacted, "That if any person after Jari. 20
next shall bring from the parts beyond the sea into this
[| 228 3 realm or into any of the dominions of the same any false
and counterfeit coin of money being current within this
realm as aforesaid, viz. by the sufferance and consent of the king
and queen,) {which extends to the successors) knowing the sAme
coin or money to be false and counterfeit, to the intent to utter or
make payment of the same, within this realm, or any of the domi-
nions of the same, by merchandizing or otherwise, that every such
offender, their counsellors, procurers, aiders, and abetters shall be
deemed traitors, and forfeit as in case of high treason,"
And by the statute of 14 Eliz. cap. 3. forging of foreign coin not
current by proclamation, as well without the realm as within, is
made misprision of treason; but that act extends only to the coun-
terfeiting, whether within the realm or without, but not to the bare
importing ; the instance that is here given is of Lnshboroiighs, which
were a base counterfeit coin after the similitude of English coin.
Other monies both before and after this statute there were, some
counterfeit, some dipt, some of baser metal, some foreign, which had
their several courses and periods in this realm : Pollards and Cror
kards, that obtained some time in Edward I. but were after decried
by proclamation 24 E. 1. vide Dy. 81. Other several base coins in
the same king's time mentioned in the ordinance of Jirticuli de
moneta, black money, which had been formerly current here, recalled
by the- statute of 9 E. 3. de moneta, cap. 4. Suskins, Dodkins, and
Gaily hall-pence recalled by the statute of 11 H. A. cap. 5. 3 H. 5.
HISTORIA PLACITORUM CORONA. 228
cap. 1. Scotch money recalled by the statute of 3 H. 5. cap. 1.
Biankes recalled by the statute of 2 //. 6. cap. 9. and several penal-
.ties, some general, some of felony applied to them ; but these were
for the most part out of this statute, and obtained here by conni-
vance, till recalled. [4]
III. The next qualification of this offense is, that the bringer in,
must know it. [5]
IV. The next qualification is, that he must bring it to merchan-
dize or make payment thereof in deceit of the king and his people. ^
Counterfeiting of the king's coin without uttering of it is
treason; clipping, washing, &c. by the statutes of 5 and IS [ 229 ~\
Eliz. is treason, but it must be for gain or profit, and here
the importing is not treason, unless it be to merchandize or utter it.
And hereupon my lord Coke(a) concludes, that he must merchan-
dize therewith, or make payment thereof; it is a favourable exposL-
jtion, but the statute is not, that if he import and merchandize, hut
piir merc/tandizer <§' payment /aire, if it were to that intent, the
statute makes it treason.
And by the statute of 1 & 2 Ph. <§• Mar. cap. 11. touching impor-
tation of coin counterfeit of foreign money, it must be to the intent
to utter and make payment of the same ; and tho the best trial of an
intention is by the act intended when it is done, yet the intent in this
case may be tried and found by circumstances of fact, by words, let-
ter^, and a thousand evidences besides the bare doing of the fact.
As in case of those many acts, that prohibit lading of wool, gold,
silver, &c. with an intent to transport the same, whereby some are
made felony, &c. the intent shall be tried in those cases (being joined
with an act) by circumstances, that evidence the intent of that action,
for tho bare intentions cannot receive any trial, yet intentions joined
with ah overt-act, as here, importation, may be tried and discovered
by circumstances. • *
So that it seems the very importing of counterfeit money pur mer-
chandizer, &;c. to the intent to merchandize or make payment there-
with, tho no such merchandize or payment be aciually made, is
treason by this statute, if the party importing know it to be such, and
that as well his intent as his knowledge lies in averment and proof.
And thus far concerning treasons i'elating to money.
(o) Co. P. C.p. 18.
[4] By the 37 Geo. 3. c. 126. s. 3. to bring into the realm any counterfeit coin resem-
bling any gold or silver coin of any foreign country, to pass as such foreign coin, know-
ing the same to be counterfeit, to the intent to utter the same in any of the king's-
dominions, is made felony, with trans^portution. By the 4 sect, tendering in payment
such coin is made, lor the first offence, imprisonment for six months — second offence,
two years — Uiird offence, felony without benefit of clergy. To have in custody a greater
number than five pieces of counterfeit foreign coin, makes the party liable to a penalty of
five pounds, by the 6 sect.
" [5] 1 East, P. C. 175. Rose, on Coin. 24. Archb. C. P. 477.
230 ^ HISTORIA PLACITORUM CORONA.
CHAPTER XXI.
CONCERNING HIGH TREASON IN KILLING THE CHANCELLOR, ETC.
I COME shortly to treat of the last kind of high treason declared by
this act.
Si home tnast chancellor, treasurer, ou justice nostre seigneur le
roy del un banck ou del autre, justice in eyre, ou de assises, & touts
autre justices assignes de oyer & terminer, esteant en lour place fesant
lour office.
I. This statute extends only to the actual killing of some of these
officers, and therefore a conspiring to kill any of these without actual
killing of any of them is not treason ; but if any conspire to do the
act, and one of the conspirators actually do it, this seems to be- treason
in them all, that are abettors or counsellors to do the act, as is before
instanced in levying of war, and therefore there is a particular act
made 3 H. 7. cap. 14, that make the conspiring the death of a privy
counsellor to be felony.(a)
If a man only strike or wound one of these officers, tho in the exe-
cution of his office, this is a great misprision, for which in some cases
the offender shall lose his hand, (A) as was once done in the case of
my lord chief justice Richardson sitting as justice oi oyer and termi-
ner, but it is not treason within this act.
II. This statute extends to no other officers but those
[231 ] above-named, and therefore not to the lord steward, consta-
ble, marshal, admiral, or lord of parliament, iho in the exercise
of their offices; it may be murder, but not treason. Co. P. C. p. 18.
A justice of peace, tho there be in the end of his commission of the
peace, nee non ad diversa felunias, malefacta audiend' Sf terminand'
is not a justice of oyer and terminer within this act, for the justice?
of operand termin r nve intended such, as have their commission ac^
audiend' l<c terminand' 4'C. as the principal designation of their office;
and thus it is in divers statutes also, that speak generally of justices
oi oyer ^\\d^ terminer, {^c)
But a justice of peace may be also a justice of oyer and terminer
by another commission, as many times they are, and then they are
(a) But this act extends only to such offenders, as are the king-'s sworn servants, whose
names are entered in the cheque-roll of the king's liousehold, and who is under tiie state
of a lord; and according to lord Goke's npiirinn the conspiracy must be plotted to ho done
within tlie king's household. Co. H. C. p. 39. by this statute the otiender was not deprived
of the benefit of the clergy; but by 9 Ann. cap. 16, on occasion of Robert Harhy, Esq.
(afterwards earl of Oxford) being stabbed by Anlhmy' Guiscard, who was tiicB under
examination before a committee of privy council, it was enacted, "'I'hat whoever should
unlawfully attempt to kill, or should unlawfully assault, strike or wound a ])rivy coun-
sellor in the execution of his office, shall suffer death as a felon without benefit of clergy,"
{h) 3 Co Inst. 140.
(c) 9 Co. 118. 6, Cro. £/w. 87, 697. .
HISTORIA PLACITORUM CORONA. 231
within this statute, when they are sitting by virtue of that commis-
sion.
The lord keeper, when there is a lord chancellor also, as there may
be both at the same time, seems not to be within this law; but if there
be no lord chancellor, then the lord keeper is within this act, for by
the statute of 5 Eliz. cap. 18. their office is declared to be the same
to all intents and purposes, as if the lord keeper were lord chancellor.
But the commissioners of the custody of the seal(c^) or for the
treasury are not lord chancellor or lord treasurer within this act, and
therefore at such times as the treasury hath been in commission those
commissioners have not the same power as the lord treasurer, as in
cases of writs of error by the statute of 31 E. 3 cap. 12. (e) in the
exchequer before the lord chancellor and treasurer, and so for the
setting of the prices of wines by the statute of 7 E. 6.(/) neither do
they sit as lord treasurer in the exchequer-chamber, as judges of
equity.
It extends not to the chancellor and under treasurer of the
exchequer, nor to the chancellor of the county palatine of [232]
Lancaster, nor to the lord privy seal, for these are special
officers and of a lower rank, than the lord chancellor or treasurer.
III. The MeVfi^ qualification of this treason is, that it must be este- .
ants 671 lour places, fesant lour offices ; wherever the seal is open,
whether in the court of chancery or in the chancellor's house, the
chancellor or keeper there sealing writs is seants en son place, fesant
S071 office.
And the same law seems to be, if he be hearing of causes in his
chamber, for tho antienily the hearing of causes upon English bills
was rare, yet use hath sufficiently obtained to give it the style of
fesant son office.
Qusere, touching the lord treasurer's dispatching business in his
house, whether this be seant in son place, but sitting in the court of
exchequer, or exchequer-chamber, or in the star-chamber, when it
stood, had been seant in son place, S,'C.
. The place for the justices of the several courts are the courts them-
selves, where they usually or by adjournment sit for the dispatch of
tlie business of their courts.
And so much shall suffice for this treason also.
1 Hawk. p. C. 41. 4 Black. Com. c. vi. p. 84.
(<Z) But it should seem, that now they are within the act, since by 1 W. Sf M. sess. 1.
cc/^j 21. their office is declared to be the same, and they to have the same jurisdiction and
privileges, as lord chancellor.
(e) See also 31 Eliz. cap. 1.
(/) This power is given by 37. H. 8. cap. 23. which statute was revived by the 5 Sf
6 Ed. 6. cap. 17, but there is nothingr of it in the 7 E. 6,
VOL. I. — 26
233 HISTORIA PLACITORUM CORONA.
CHAPTER XXII.
CONCERNING PRINCIPALS AND ACCESSARIES IN TREASON.
Before I leave the discourse concerning high treason it is necessary
to consider, whether or how all are principals in high treason.
In cases of felony there are two sorts of principals, viz. principals
in the first degree, that do the fact, be it in murder or any other
felony, and principals in the second degree, that are present aiding
and abetting the felony.
And regularly in felony there are two sorts of accessaries, 1. Ac-
cessaries before the fact, which are not present, but yet counselling,
connnanding, or abetting the felony, but in manslaughter no such
accessaries can be before: and 2. Accessaries after, such as knowing
a felony to be done by such a man do y^t receive or maintain him,
unless it be a wife receiving her husband ;(<-/) of this hereafter in its
due place.
Now in treason thus far it is agreed of all hands, 1. That there
are no accessaries a parte ante., but ail such as counsel, conspire,
aid, or abet the committing of any treason, whether present or
absent, are all principals. 2. It is likewise agreed of all hands,
that in all treasons, except that which concerns counterfeiting the
great or privy seal, or money, whosoever knowingly receives, main-
tains, or comforts a traitor, is a principal in high treason. Co. P. C,
16, 138, and so it is there cited to be resolved in the case of Jlbingtouj
who received Garnet, that was one of the conspirators in the powder
treason ; that which hath occasioned the doubt hath been the reso-
lution in Conyer^s case, Dy. 296. who was indicted, that proditorie
receptdsset, Sj-c. Fairfax, salens ipsuryi diversas pecias moyietse ad
shnilitudineni monetse Angiiae vocat shillings de /also me-
[]234] iallo fabricdsse ; upon this he and others were discharged,
because it was misprision of treason only, and not treason;
but this opinion is contradicted by my lord Coke,Pla. Cor. p 138.
and yet it is said by the same author, Paschse 9 Jac. 12 Rep. 81. the
receiver of a counterfeiter of the seal or money is no traitor.
We will see therefore in what cases an act ex post facto will be,
treason in relation to the aid of him, that committeth this or any
other treason.
A man is imprisoned for treason, the goaler voluntarily suffers him
to escape, this is treason in the goaler. Stamf. PI. Co. 32.
If a person be arrested for treason, he that rescues him is guilty of
treason. [1]
(a) Vide supra, p. 47.
[1] By the 23 Sect, of tlie Act of April 30, 1790, it is enacted, That if anv person or
persons shall by force set at liberty or rescue any person wiio shall be founa guilty of
treason, murder, or any other capital crime, or rescue any person convicted of any of
HISTORIA PLACITORUM CORONiE. 234
And so if a man be imprisoned for treason, and another prisoner
or any other person breaks the prison, and lets out the party im-
prisoned for treason, this is treason in the party that breaks the
prison. 1 H. 6. 5 Stamf. PL Cor. 32. nay, if a stranger breaks the
prison and lets out one there imprisoned for treason ; this is held
treason, tho he that breaks the prison knew not that any there was
imprisoned for treason; so resolved by ten judges, P. 16. Car.
Crake 583. Bens fed's case; but my lord Coke holds that he must
be knowing it. Co. Mag. Cart, super statutum de frangentibus
prisonam.{b)[2']
Rot. Pari. 2 H. 6. n. 18. in schediila. Mortimer was committf^
to the Tower oi London for suspicion of treason ; and 23 Feb. 2 M.
6. was indicted, quod per covinam, confoederationem 4* assensum
AVilielmi King, S;c. pro diversis denariorum summis eidem Wil-
lielmo K\n% per praefatum Johannem Mort'unev p?'omissis, idem Jo-
hannes txirrim prxdicf /also S,' proditorik f regit : the indictment
was removed into parliament, and John Mortimer likewise brought
into the parliament: the commons desired the duke of Gloucester
(then commissioned to hold the parliament) that the indictment might
be affirmed, and that John Mortimer de prxdictis proditionibus 4'
feloniis convincatur : thereupon the duke and lords at the request
of the commons affirm the indictment by act of parliament,
& quod prgedictus Johannes Mortimer de proditionibns & [ 235 ]
feloniis prsedictis convincatur, & quod trahatur per medium
civitatis, & super furcas de Tyburne suspendatur, & ad terram pro-
jiciatur, & caput ejus amputetur, & interiora sua comburantur, &
corpus ejus in qnatuor partes dividatur, & caput ejus ponatur super
portam pontis London, &c. & quod bona & catalla, terras & tcne-
menta sua, tam in dominico, quam in reversione, domino regi foris-
faciat.
So that it seems, tho the statute of 25 E. 3. speaks not of these
offenses, yet they are in a manner incidents, and virtually included
within the original ofiense, and therefore these cases of voluntary
(6) 2 Ce. Inst. 590.
the said crimes, going to execution or during execution, every person so offending and
being thereof convicted, shall suffer death. And if any person shall by force set at
liberty or rescue any person who before conviction shall stand committed for any of the
capital offences aforesaid ; or if any person or persons shall by force set at liberty or
rescue any person committed for, or convicted of any other offence against the United
Slates, every person so offending shall, on conviction, be fined not exceeding five hundred
dollars, and imprisoned not exceeding one year.
[2] It is true it was resolved in BensteacVs case, cited here bj' the learned author, (Sir
M. Hale,) and at p. 141, but I think not with entire approbation of the rule, that the
party breaking prison would have been guilty of treason though he had not known that
traitors were there. I am by no means satisfied with this opinion. For the single au-
thority upon which this point is said by Hale to have been so ruled doth by no means
warrant it. The book expressly stateth it, that the party did know that traitors were
there. And Brooke, who abridgeth the case, is express to the same purpose, " sciant que
traitors fuerent en ceo.'''' And Coke, citing the same case, layeth a great stress on this
circumstance, that the party knew that traitors were there, and conducted them out of
prison. Fost. 344.
235 HISTORIA PLACITORUM CORONiE.
permission to escape, rescue, breach of prison, translate the original
offense upon him, that commits it by the common law; and these
would be treasons as well in the case of counterfeiting of coin, as
other treasons.
But herein these things are observable, 1. This judgment in Mo7'-
timer^s case is not at all now in force, nor binding, for the statute of
1 Marix repeals not only enacted treasons, but declared treasons,
that were not within 25 E. 3. and 2. That therefore at this day, if
one be committed for suspicion of treason, and another break goal to
let him out, yet unless the party imprisoned were really a traitor,
ifiis is no treason at this day. 3. But if he were really a traitor, then
^leaking of the prison to enlarge him is treason, and a treason of a
greater guilt, than a knowing receiver, and then it is treason by vir-
tue of the common law, for it is a kind of incident; the like of a
receiver of a traitor, or a goaler that sutlers him voluntarily to escape,
those are incident treasons by the common law, and virtually inclu-
ded in the statute of 25 E. 3. as well as a receiver of a traitor know-
ingly.
The differences therefore seem to be these, which state and recon-
cile the whole matter.
First as for new treasons. If an act of parliament enact a new
treason, and that the offender, his counsellors, abetters, and aiders
thereunto shall suffer as traitors, this doth not make receivers or com-
forters after the fact guilty of treason, for expressum facit cessare ta-
citurn; such a clause we shall find in the statute 23 Eliz.
\_ 236 ~\ cap. 2. for a new felony(c) 5 Eliz. cap, 1. in a case of a pr'ss-
miinire.{d)
If an offense be made treason in the offender, hi» procurers, coun-
sellors, abetters, consenters, (without the word thereAcnto) yet it seems
to me for the same reason it doth not make the knowing receivers
traitors, unless the words receivers or comforters be also inserted:
for the former words import an offense preceding or concomitant to'
the act of treason, but- the latter words receivers and comforters are
after the offense, and so of another nature : and this difference appears
expressly by the statute of 13 Eliz. cap. 2. where abetters, procurers,
and counsellors are made guilty of high treason; but receivers and
comfortersie) after the fact are only within the statute o{ prsemunire ;
the like in 27 Eliz. cap. 2. where the coming of a priest, S)^c. is trea-
son, but his receiver, aider, or comforter is felony: so 5 & 6 £^. 6.
cap. 11. and 1 Eliz. cap. 5. the offenders, their counsellors, abetters
and procurers, and all and every their aiders and comforters know-
ing the same extend to knowing receivers.
The word {aid) is of somewhat a more doubtful extent, yet we
shall find in those. statutes and some others the word aid to be applied
to an aiding after the offense, and not in it or to it; but it seems to
(c) The words of this statute are, aiders, procurers, and abetters.
(d) The words of this statute are more extensive, viz, abetters, procurers, counsellors,
aiders, assistants, and comforters.
(e) The words in this place of tlie statute are, aider Sy comforters, or maintainers.
HISTORIA PLACITORUM CORONiE. 035
me, that when it is joined only with those that import a consent
to the offense, (as procurers, counsellors, aiders, abetters, or coun-
sellors, consenters and aiders) as in the statute of 5 Eliz. cap. 11.
for clipping, IS Eliz. cap. 1. for impairing 1 Mar. sess. 2 cap. 6. for
counterfeiting foreign coin, it must be construed of those that are
aiders in the offense, and not bare receivers of the person.
But in all new treasons, those that rescue him from prison, or suffer
him voluntarily to escape being lawfully committed to his custody,
tho these are not expressly contained in that new act of treason, yet
they are traitors by a necessary construction of law upon the act
itself; but if the act, be general, making a man a traitor for
such an act without mentioning in what degree his aiders, f 237 1
or abetters, comforters, or receivers shall be, it seems proba-
ble, that the receiver, knowing it, is thereby virtually made also a
traitor; this, I say, seems probable, but most certainly procurers, con-
senters, and aiders to the fact are thereby traitors, tho not specially
so enacted; this is agreed in Conyer'^s case, By. 296. Co. P. C. 16
fy 138.
Secondly, As touching treasons within the act of 25 E. 3.
The procuring, counselling, consenting, or abetting such treasons,
tho not specially expressed in that statute, is treason within that statute.
Co. P. C. cap. 64. p. 138. and so is the receiving of a traitor, or a
gaoler's voluntary permitting him to escape, if he were in truth a
traitor.
In case of the knowingly receiving of a person guilty of counter-
feiting of coin, or of the great seal, there is diversity of opinion, M.
12 (§• 13 Eliz. By. 296. and my lord Coke himself in his 12 Rep.
p. 81. 9 Jac. says, that it is not treason, and yet Pla. Cor. cap. 64. p. 138.
he holds it treason, tho this latter opinion is the more probable, the
former is more merciful.
But in all other treasons against the king within the statute of 25 E,
3. the receiver of a traitor knowingly makes the receiver a traitor;
this was Jihin.f^ton^s case for receiving Garret guilty of the powder
treason, Co. P. C. p. 138.
Only this difference is to be observed, he, that being committed
for treason breaks prison, may be indicted for breaking of prison, be-
fore he be convict of the principal offense, for which he was com-
mitted, but not of treason, but it will be only felony by the statute
de fran^entibus prisonam, for this statute de frangenlibus prisonam
makes it not treason ; and if it did, yet the statute of 25 E. 3. makes
it no treason, because not within the same statute, and consequently
1 Mar. cap. 1. exempts it from being treason; but he, that rescueth
a person imprisoned for treason, or sutlers him voluntarily to escape,
stiall not be arraigned for that ofiense, till the principal offender be
convict of that offense: for if he be acquitted of the principal ofiense,
the gaoler, that suffered the escape, and he that made the
rescue shall be discharged ; and the like in felony. Coke Mag. [ 238 ]
Car. super stat. defrangentibus prisonarn, p. 592. and tlie
reason is, because tho rescuing a person charged with treason, or suf-
238 HISTORIA PLACITORUM CORONA.
fering him wilfully to escape be a great misdemeanor, yet it is not
treason, unless in truth and reality lie were a traitor, for a man may
be arrested or imprisoned under a charge of treason, and yet be no
traitor.
And iho the receiver of a traitor, knowing it,, be a principal traitor,
and shall not be said an accessary, yet thus much he partakes of an
accessary, 1. That his indictment must be special of the receipt, and
not generally, that he did the thing, which may be otherwise in case
of one, that is a procurer, counsellor, or consenter;[3] thus it was
done in Co n]i/e?''s ca.se, Di/. 296. 2. That if he be indicted by a seve-
ral indictment, he shall not be tried till the principal be convicted, (/)
upon the reason of the goaler and rescuer before given, for the prin-
cipal may be acquitted, and then he is discharged of the crime of re-
ceipt of him. 3. If he be indicted specially of the receipt in the same
indictment with the principal offender, as he may be, yet the jury
must first be charged to inquire of the principal offender; and if they
find him guilty, then to inquire of the receipt, and if the principal be
not guilty, then to acquit both; and accordingly it was ruled in ^r-
deii's case.(^)[4]
For tho, in law, they be both principals in treason, and possibly
process of utlary may go against him, that receives, at the same time
as against him, that did the fact; and tho the principal appear, process
may go on against the other (otherwise in the case of an accessary
in felony, Stamf. Plct. Cor. 47.) yet in truth he is thus far an acces-
sary, that he cannot be guilty, if the principal be innocent.
(/) See postea Book II. cap. 28. And therefore the conviction of -lady Alice Lisle,
1 Jac. II. was contrary boUi to law and reason, for that Hicks the principal (for barboutr
ing whom she was convicted of treason) was not at that time convicted, nor indeed was
there any proof that she at that time knew he had been in the rebellion. Slate Tr. Vol,
IV. p. 105.
(g) lAnd.n. 154. >. 109.
[3] The words " may be otherwise" do not clearly convey the idea that it is univer-
sally otherwise. In all cases of a receiver the indictment must be special on the receipt,
and not general. The words " may be otherwise in case of a procurer, tfcc." signify
that it may be otherwise in all treasons, or that it may be otherwise in some treasons.
If it may be otherwise in some treasons, without contradicting the doctrines of Hale
himself as well as of other writers, but cannot be otherwise in all treasons without such
contradiction, the fair construction is, that Hale used these words in their restricted
sense; that he used them in reference to treasons in which a general indictment would
lie, not to treasons where a general indictment would not lie, but an overt act of the
treason must be charged. Per Marshall, C. J. 2 Burr's Tr. 434.
[4] Tiie conviction of some person, who has committed the treason, must precede the
trial of him who advised or procured it. 2 Burr's Tr. 461.
But in all acts of approbation, incitement, advice, or procuring, in case of treason in
compassing the king's death, the party may be tried before the person who acted upon
such incitement; because the bare advising or encouraging such acts, is in itself an
overt-act of compassing; and it is immaterial whether the attempt was ever made or
not. But in the other treasons in the 25 Edw. 3. if one advise another to commit them,
or furnisli him means for that purpose, and tlie fact is committed, the adviser will be a
principal traitor; for such advice would have made him an accessary before the fact in
felony ; but if the act were not committed, the adviser could not be a traitor. In these
cases the treason is of a derivative nature and depends upon the guilt of the agent, the
proof of which can only be legally ascertained by his conviction. Fast. 346. 342, 1 East,
PL 100. 4 Bl. Com. 35. .
HISTORIA PLACITORUM CORONA. 238
How far Mortimer^s case agrees with law at this day, vidcbimus
infra, 8f vide supra.
That, which will not make an accessary to felony after
the fact, will not make a man'principal in treason; therefore [ 239]
sending of a letter for his deliverance, or speaking a good
word for him, ^-c. will not be treason. Slum/. PL Cor. 41. b. how
far charitable relief will do'\t.,xide infra super staluium 13 Eliz.
cap. l.[5]
[5] The principle that the same acts which make a man an accessary in felony, make
him a principal in treason applies, it is presumed, in respect to treason in tlie state of
Virginia ; but whether it does in respect to treason against the United States is doubt-
ful; because the acts in which treason against the United States shall consist are pre-
cisely defined by the federal constitution in terms which seem to exclude all accessorial
treasons ; and because, too, the common law, of which this doctrine is a part, is not the
law of the United States, though it has been severally adopted by all of them except one.
Davis's Virg. Cr. Law, 38. But it was laid down by Judge Chase, in Fries' Trial, 199.
that in treason all ibe pa rticepes criininis are principals; that there are no accessaries in
this crime. All persons who are present, and countenancing and are ready to afford
assistance, if necessary, to those who actually commit any treasonable act, are also prin-
cipals. If a number of persons assemble and set out upon a common design, as to resist
and prevent by force, the execution of any law, and some of them commit acts of force
and violence with intent to oppose the execution of any law, and others are present to aid
and assist if necessary, they are all principals. If any man joins and acts with an
assembly of people, his intent is alwaj's to be considered and adjudged to be the same as
theirs; and the law in this case, judgeth of the intent by the fact. If a number of per-
sons combine or conspire to effect a certain purpose, as to oppose by force, the execution
of a law, any act of violence done by any one of them, in pursuance of such combination
and with intent to effect such object, is in consideration of law, the act of all who are
present when such act of violence is committed. If persons collect together to act for
one and the same common end, any act done by any one of them, with intent to effectu-
ate such common end, is a fact that may be given in evidence against all of them. It
appears to the court, says Chief Justice Marshall, (2 Burr's Tr. 405.) that those who
perform a part in the prosecution of the war may correctly be said to levy war and to com-
mit treason under the constitution. It will be observed that this opinion does not extend
to the case of a person who performs no act in the prosecution of the war — who counsels
and advises it — or who, being engaged in the conspiracy, fails to perform his part.
Whether such persons may be implicated by the doctrine, that whatever would make a
man an accessary in felony makes him a principal in treason, or are excluded, because
that doctrine is inapplicable to the United States, the constitution having declared that
treason shall consist only in levying war, and having made the proof of overt acts neces-
sary to conviction, is a question ot vast importance, which it would be proper for the
Supreme Court to take a fit occasion to decide ; but which an inferior tribunal would not
willingly determine unless the case before them would require it. This doctrine
remains still in uncertainty, having never come up before the Supreme Court of the
United Slates. See 4 Tucker's Bl. Com. Appdx. 41. 1 East, P. C. 93. 4 Bl. Com. 34.
323. Fosl. 341. Hawk. c. 17. s. 39.
239 HISTORIA PLACITORUM CORONA.
CHAPTER XXIII.
CONCERNING FORFEITURES BY TREASON.
Having gone thro the several treasons declared by this statute, I
shall now proceed to what follows in this statute, which is, 1. Touch-
ing forfeitures of high treason. [1] 2. Touching declaring of treason
by parliament, and under this head shall consider those several de-
clarations and new enacted treasons since the statute of 25 E. 3. and
how they stand at this day.
The forfeitures for treason are either goods or lands.
As to goods: the king's prerogative as to goods forfeit for treason
is the same as to forfeitures for felony, only there seems to be some
diflerence in relation to grants thereof. 22 Jiss. 49. The king grants
to the master of St. Leonard's Omnia bona S^" catalla tenenliuni
stioruni fugitivorum, and felonum qualitercunque damnatorum.
A tenant of the master's was convict and attaint for killing of the
king's messenger, which at that time was held higli treason; it was
ruled, that the master shall not have the goods of this person by force >-'
of this general grant.
As to lands this statute of 25 E. 3. goes farther, Et soit a entendus,
qe les cases suisnosmes doit estre adjugge treason, qe se extend a
nostre seigneur le roy & sa royal majesty, & de tiel manners de trea-
sons le forfeiture des eschetes appertenont a nostre seigneur le roy,ci
bien de terres & tenements tonus des autres, come de Ini mesme.
I shall here examine, 1. Of what lands the king shall have
r 240 ] the eschete upon attainder of treason, and 2. In what man-
ner or degree he shall have those eschetes. 3. Where a
subject in point of privilege or franchise shall have these royal
eschetes.
I. As to the first of these, what lands are forfeit to the king by
attainder of treason, my lord Coke, PL Cor. p. 19. gives a full ac-
count of them, which I shall repeat with some additional observa-
tions: 1. At common law the lands entailed were forfeited for trea-
son, because it was a fee-simple conditional; but by the statute IV. 2.
de donis conditionalibus the forfeiture of lands entailed, even in case
of treason, was taken away, and the general words of this statute of
25 E. 3. doth not repeal the statute of Westm. 2.
But some later statutes have given to the king the forfeiture for
treason of lands entailed: the statute of 21 jff. 2. cap. 3. did give the
forfeiture of lands entailed to the king for the treasons therein men-
tioned; but that statute with the whole parliament of 21 li. 2. was
repealed by the statute of 1 H. 4. cap. 3.
[1] The Constitution (Art. 3. Sect. 3.) declares that no attainder of treason shall work
corruption of blood, or forfeiture, except during the life of the person attainted. By the
24 Sect, of the Act. of 30 April, 1790, it is enacted, That no conviction or judgment, &c.
shall work corruption of blood, or any forfeiture of estate.
HISTORIA PLACITORUM CORON.^. 240
By the statute of 26 H. 8. cap. 13. in fine lands entailed are for-
feited by attainder of treason, viz. "All such lands, tenements, and
hereditaments, which any such offender shall have of any estate of
inheritance in use or possession, by any right, title, or means, within
any of the kitig's dominions at the time of any such treason commit-
ted, or at any time after, saving to all persons, other than the otren-^-
ders, their heirs and successors, and such persons as claim to any of
their uses, all such right, title, interest, possession, 4*c. as they might
have had if this act had not been made."
And by the statute of 33 H. 8. cap. 20.(a) "That if any person
be attaint of high treason by the course of the common law such,
attainder shall be of as good force, as if it had been by parliament;
and the king, his heirs and successors, shall have as much benefit by
such attainder, as well of uses, rights, entries, conditions, as posses-
sions, reversions, remainders and all other things, and shall
be deemed in the actual and real possession of the lands, [ 241 J
tenements, hereditaments, uses, goods, chatties, and all other
things of the offender, which his highness ought to have, if the attain-
der had been by authority of parliament, without any olBce or inqui-
sition to be found for the same, saving to all persons, (other than the
offenders and their heirs and assigns, and other persons claimirig by,
from or under them or to their uses after the treason committed) all
such right, title, use, possession, entry, reversion, remainder, interest,
condition, fees, offices, rents, annuities, commons, leases, and all other
commodities, and hereditaments whatsoever, which, they should,
might, or ought to have, if this act had not been made."
And the statute of 5 4* 6 Ed. 6. cap. 11. is to the same effect.
These statutes as to the forfeiture of lands entailed remain in force,
and are not repealed by the statute of 1 Mar. and so it hath been
often ruled, and particiilarly by all the judges in the lord Sheffield's
case 21 Jac de quo postea.
And the reason is, because the statute of-1 Mar. cap. 1. enacting,
that no treason shall be, but what was enacted by 25 E. 3. and that
no pains of death, penalties or forfeitures shall ensue for doing any
treason, other than be in the statute of 25 E. 3. these words other
than be mentioned in the statute of 25 E. 3. refer to treasons, not
to forfeitures or penalties; and therefore tho by the statutes of 2Q
and 33 H. 8. new penalties, viz. forfeitures of lands intailed, are
introduced, this forfeiture is not repealed, but only new treasons not
mentioned in 25 E. 3. so that at this day, if tenant in tail be attaint
of treason, the estate-tail is forfeited, and yet this attainder works no
corruption of blood as in relation to the heir in tail : vide the lord
Lumley's case cited in Doiufy's case, 3 Co. Rep. 10. b. Grandfather
tenant in tail, father, and son, the father is attaint of treason and
dies, the grandfather dies, the land shall descend to the grandchild,
for the father could forfeit nothing, for he had nothing to forfeit;
(a) See the cause of making this act, 3. Co. Rep. 10. b,
VOL. I. — 27
S41 HISTORL\ PLACITORUM CORONA.
and the statute of 26 H. 8, that gives the forfeiture of tenant in tail,
yet corrupts not the. blood by the attainder of the father.
And therefore it is agreed in the principal case, that if
[242] after 26 H. 8. and before 33 //. 8. which vests all in the
king without office, if tenant in tail had been attainted of
treason, and died in that interval, the land would have descended to
his son till office found; but otherwise in case of tenant in fee-simple
attainted and dying before office, the freehold is cast upon the king
without office, because none could take it else,
2. The king at common law and by virtue of this statute was
entitled to a right of entry, where the party was in merely by dis-
seisin or abatement, but not to a right of entry, where the possessor
was in by title; but at this day by virtue of the statute of 33 H. 8.
above-mentioned the king is entitled to a right of entry iri both cases,
and that without office, but then there must be an inquisition or
seizure to bring the king into the actual possession ; and if he grant
it over before such seizure, the grant must be special, not of the land
simply, but of the right to the land, otherwise neither land nor the
right of entry passelh; it is so adjudged in Dowfy^s case, 3 Co. Rep.
10. b.
3. If a person committing treason hath at the time of the treason
committed a bare right of action touching any lands, or a right to
reverse a judgment given against him by writ of error, or a right to
bring a formedon, or writ of entry, but hath no right of entry with-
out such recovery in such action; this right neither at common law
nor by the statute of 33 H. 8. is given to the king by the attainder
of treason, 3 Co. Rep. 3. a. marquis of TVinchester^s case, 3. Co.
Rep. 10. b. Doivty^s case so adjudged; but yet there have been
two great cases resolved, that tread hard upon the heels of this
judgment.
H. 15 Eliz. PL Com. 552. b. Walsins;ham^s case: Wyat tenant
in tail of the gift of king Henry VII. the reversion in the crown,
made a feoffment in fee, and then was attaint of treason, and died
leaving issue, tho the feotfor, against his own feotl'ment, could not
claim any right at the time of the treason; yet it was adjudged,
1. That there remained in him such a right of the entail, as was
forfeited to the king. 2. And that the king was in as of
\_ 243 ] his reversion, and should not be subject to leases duly made
by JVyat before his attainder.
21. Jac. in Camera Scaccarii Stone and Newman's case, it was
adjudged in B. R. and affirmed i)i Catnera Scaccarii by the greater
number of justices. Bii^ott tenant in tail general makes a feoff-
ment to the use of himself and his heirs; and before the statute of
26 or 27 H. 8. commits treason, and is attaint of treason, and dies
leavitiij issue inheritable to the entail, then a special statute is made
31 //. 8. whereby he was to forfeit all estates and rights; yet it was
adjudged, 1. That against his own feoflment the tenant in tail could
have no right, and therefore if the case had stood barely so, the
right of the entail could not have been forfeited by the attainder.
HISTORIA PLACITORUM CORONA. 043
2. But when an estate returns to him, that is forfeited by the
attainder, tlie king shall hold this estate discharged of the right of
the old entail, and that right shall never revive to the issue. 3. That
the retrospect of the king's title by the attainder shall over-reach and
avoid the remitter, which was wrought in the issue before the king's
actual seisin by the attainder or office thereupon.
But it is to be noted, that if the king makes a gift in tail, saving
the reversion to himself, the attainder of treason of such tenant in
tail shall not bar his issue, because the statute of 34 H. 8. cap. 20.
enacts, " That the heir in tail in such case shall have the lands, any
recovery, or any other thing or things hereafter to be had, done, or
suffered by or against such tenant in tail to the contrary notwith-
standing;" which act coming after 26 H. 8. and 33 H. 8. that gave
the forfeiture of lands entailed, is a repeal of those statutes as to this
case, and a restitution of the statute de donis condilionulibus in this
special case: and therefore, where in Plowden^s Co7Jimenlaries
{fJ'\i /sing ham's ca.sc) PFi/af, who was tenant in tail of the gift of
the crown, the reversion in the crown, was attaint of treason 1 Mar.
he had not forfeited his^ land by virtue of the statutes of 26 or 33
H. 8. if there had been no more in the case; but in that case he lost
it, because by special act of 1 <§' 2 Fh. <§' 3Iar. that attainder was
confirmed, and farther it was enacted, " That he should for-
feit all the laflds, tenements, and hereditaments, whereof he f 244 1
or any to his use was seized the day of the treason com-
mitted, saving the right of all persons other than the person attainted
and his heirs, and all claiming under them after the treason com-
mitted;" and this act coming after 34 H. 8. cap. 20. repealed that
act as to this case, as the act of 34 H. 8. repealed the acts of 26 and
33 H. S. as to entails of the gift of the crown, where the reversioa
continues in the crown.
But since all these statutes it is enacted by the statute of 5 <§' 6 Ed.
6. cap. 11. "That every offender being lawfully convict of any man-
ner of high treason according to the course and custom of the com-
mon law shall lose and forfeit to the king's highness, his heirs and
successors, all such lands, tenements, and hereditaments, which any
such offender or offenders shall have of any estate of inheritance, in
his own right, in use, or possession, within this realm of Englandj
or elsewhere within the king's dominions at the time of such treason
committed, or at any time after:" this act coming after 34 H. 8.
makes lands of the gift of the king in tail subject to forfeiture for
treasons, as well as other lands entail. 16 Eliz. Dy. 332. h.
4. At common law the king was not entitled to a condition, that
was in the party attainted; but now by the express words of the
statute of 33 H. 8. the king is in some cases entitled to a condition
of re-entry belonging to the party attainted, viz. not to the land itself
but to the benefit of that condition, which might reduce the land into
the possession of the party attainted, if he had not been attainted,
and now to the benefit of the king : but herein this difierence is to
be observed.
244 HISTORIA PLACITORUM CORONA.
1. If the condition be such, as that the substance of the perforln-
ance thereof is not bound up strictly to the person attaint, then such
a condition is given to the crown, and he may perform it, as the
party himself might have done in case the condition hath a continu-
ance.
7 Co. Bep. W.h. Engle field's case: Sir Francia Engle field con-
veyed his lands to the use of himself for life, the remainder
[ 245 ] to his nephew and the heirs male of his body, 4'c. with a
proviso, Xhvki in as much as he might turn prodigal, and there-
fore for a bridle to him, if Sir Francis by himself, or any other dur-
ing his life, should deliver or offer to his nephew a ring of gold to
the intent to make void the uses, then the uses should cease — Sir
Francis is attaint of treason; it was ruled, that the queen in the life-
time of Sir Francis may by commission, SfC. tender the ring and
make void the uses, for it was not personally annexed to him, but
might be performed by the queen.
This case was judged M. 33 <§' 34 Eliz. but it was not thought
safe to rely upon this judgment; but 35 Eliz. cap. 5. there was a
special act of parliament reciting the attainder and the conveyance
with the provisio: "And it is declared and enacted, that the attainder
be confirmed, and that the queen was lawfully entitled to take bene-
fit and advantage of that proviso in the same form, as Sir Francis
Englefield might have done, and that the said provi^ or condition
was well performed by the queen's commission:" But suppose Sir
Francis had died before the queen had made the tender, then the
condition which was only limited to him during his life, had been
determined, and the queen could not have tendered, for the attainder
could not lengthen the condition longer than the first limitation; but
on the other side, if the condition be appropriated and applied to the
person of the party attaint, then such condition is not given to the
crown.
The duke oi NorfoWs case 11 Eliz.{b) cited in Englefield's case
to be adjudged and then agreed by the court: the duke conveyed
land to uses, provided that if he shall be minded to revoke, and shall
signify his mind in writing under his proper hand and seal subscribed
by three witnesses, that then the uses should be revoked; it was
ruled, that this condition was not given to the crown by his at-
tainder.
2. Car. 1. B. B. Sir William Shelly,{c) made a feoffment to the
use of himself for life, the remainder to his first, second, third,
J^ 246 ] and other sons in tail, provided, that if Sir Hilliam Shelly
at any time during his life give or deliver, or lawfully ten-
der to the feoffees or any of them, their heirs or assigns, a gold ring,
or a pair of gloves of the price of twelve-pence ipso Willielmo tunc
declarante Sf" expressante, that the tender was to the intent to avoid
the deed, that then it should be void, and the feofees should stand
(b) 7 Co. 13, a.
(c) See this case by the name of Warner and Hardwin in Latch 25,69,102. W.
Jones 134.
HISTORIA PLACITORUM CORONA. 246
seised to the use of Sir William and his heirs; and it was adjudged
in the common pleas, tliat this condition was so personal, that it was
not given to the khig, but upon a writ of error in B. JR. the court
was "divided; Whitlock and Jones, that it was given, Croke and
Doderidge, that it was not given to the king, <§• sic stetit.
In the case of Wheeler and Smi/h,{d) Simon Mayne being pos-
sessed of the rectory of Haddenharn for sixty years, in 1613, assigned
it over to trustees in trust for himself for life, and afterwards to di-
vers other trusts for payment of debts and oiher things, provided
nevertheless and upon condition, that if the said Simon iV/c/r/ne shall
at the time of his decease have issue of his body, that then and
from thenceforth the trustees shall stand possessed for such person
and persons, and such estate and estates, as Simon Mayne by his
last will and testament shall limit and appoint, and for want of such
Hmitation and appointment, in trust for such after-born child ; pro-
vided also, that if the said Simon Mayne shall hereafter during his
life be minded to make void these present indentures, or any use or
trust therein, or to limit new uses, and the same his mind shall de-
clare or signify under his hand and seal in the presence of two wit-
nesses, then the uses shall cease, and then the trustees shall stand
possessed to such uses, as he by such deed or writing, or by his
last will and testament in writing shall limit and appoint. Simon
Mayne was guilty of the execrable murder of the king, had issue a
son, was attainted, and died without making any such will or revo-
cation or declaration, and by act of parliament all the estates, which
he had or any in trust for him, and all rights, conditions, ^-c. were
vested in the crown, who granted this rectory to the duke of Yorkj
and by him the same was granted to Sir William Smyth-:
it was adjudged in the common pleas, and upon a writ of [247]]
error affirmed in the king's bench, P. 23 Car. 2. that Sir
William Smyth had no title to this rectory : 1. That this was a per-
sonal condition and not given to the king, under his hand and under
his proper hand, being all one in sense and appropriate to his person.
2. That, if it were given, yet the same expiring by the death of Mayne
could not be performed after his death by the king. 3. Admitting it
might, yet nothing but the condition was in the king, and not the
rectory itself, till the condition performed. 4. That consequently the
rectory passed not to the duke of York, because the condition was
not performed. 5. Neither the performance of the condition nor the
benefit thereof passed to the duke by the general grant of the rectory,
but it must have been specially granted, or otherwise nothing passed.
6. That here was no estate m trust for Simon Mayne longer than
during his life, because the whole residue of the trust was out of
him, and was not reducible back to him, but by a strict performance
of the condition or power, which was strictly tied to the person of
Simon Mayne, and determined by his death, and therefore not given
to the crown; but if it had been given to the crown, and might by
the crown be transferred to the patentee, yet it seems the patentee
id) See this case reported 2 i£e6. 564, 608, 6763, 772. 1 Mod. 16, 38.
247 HISTORIA PLACITORUM CORONiE.
could not transfer or assign that condition over to another; but this
last question was not moved, as I remember, for the resolution of the
former points made an end of the case.
5. At common law the king by attainder of treason was not en-
titled to uses or trusts belonging to the party attaint : thus it is recited
to be the law by the statute of 27 H. S. cap. 10. and was one of the
reasons of the making of that statute for transferring of uses into
possession ; and hence it was, that in some general acts touching
treason, as that of 21 ^. 2. cap. 3. and in most particular acts of
attainder, that were made after that time, there was special provision
made, that the parties attaint should forfeit all the lands, whereof
they or any other to their use were seized, and in most of those acts
provision was also made to save from forfeiture such lands, whereof
the persons attaint were seized to the use of any other, as
[ 248] may be seen in the acts of attainder: vide Rot. Pari. 1 E.
4. w. 18. 3 E. 4. n. 28. 4'C.[2]
And yet, altho the statute of 27 H. S. cap. 10. had executed uses
into possession, so that after that statute all uses were drowned in
the land, yet there have succeeded certain equitable interests called
trusts, which differ not in substance from uses; nay, by the very
statute of 27 H. 8. cap, 10. they come under the same name, viz.
uses or trusts.
And by the statute of 33 H. 8. cap. 20. there is a special clause,
that the person attainted shall forfeit all uses, &c. and the saving is
to all persons other than the person attainted, and his heirs, and all
persons claiming to the use of them or any of them.
And what other uses there could be at the naaking of the statute
of 33 H. 8. but only trusts, such as are now in practice and retained
in chancery, I know not, and yet such hath been the opinion of men,
or rather their necessity in respect of frequent emergencies in estates
and their dispositions thereof, that these trusts since the statute have
not only been kept from being executed by the statute of 27 H. 8.
but have been held and used quite as other things ditferent from
uses, and from all those burdens, with which uses were incumbred
by several acts of parliament made before 27 H. 8.
And therefore //. 55. Eliz. Croke, ?i. 2. B. B. Ridler and Pun-
ter,{e) such a trust not within the statute of 3 H. 1. cap. 4. or any
other statute of that nature,
M. 16 Jac. B. B. Croke, n. 23.{f) the king made a lease for
years to Sir John Duncomhe of the provision of wines for the king,
but in trust for the earl of Somerset, who was afterwards attainted
of felony ; by the opinion of all the judges the king shall have this
trust, and so if a person outlawed have a bond made to another in
trust for iiim, it shall be executed by an information in the exche-
quer chamber or chancery; but it was agreed by them all, and so
(e) Cro Eliz. 291. (/) Cro. Jac. 512. Hob. 214.
[2] By the 4 & 5 Will. 4. c. 2.3. s. 3. no lands or chaUels vested in any trustee shall be
forltit to the king by the attainder of such trustee.
HISTORIA PLACITORUM CORONA. 248
resolved in i/1bingfon''s case, that a trust, if a freehold, was not for-
feited by attainder of treason.
But iiow this resokition in ^bingtori's case can stand [249"]
with the statute of 33 H. 8. I see not, for certainly the
uses there mentioned could then be no other than trusts, and
therefore the equity or the trust itself in cases of attainder of treason
seems forfeited by the statute of 33 //. 8. upon an attainder of cesty
qe trust of an inheritance; tho possibly the land itself be not in the
kin^.
But indeed, where the king or a common person is entitled to an
eschete by an attainder of felony, there, by the attainder of cesty qe
trust in fee-simple the land nor trust doth not come to the king or
lord by eschete, for the eschete is only oh defectum tenentis, and in
this case the king or lord hath his tenant, as before, namely the
feoffee in trust, who is to be attendant for the services to the king or
lord, and by the attainder of felony of the feoffee, the lord shall have
his eschete of the lands discharged of the trust ;[3] and besides, an
attainder of felony is not within the statute of 33 H. 8. cap. 20. and
so it was resolved by all the court in the exchequer, Al. 21. Car. 2.
wherein the case was thus. (A)
10 Martii 1 Car. a long lease of the manor oi Bony Tracy came
to Sir Ralph Freeman.
4 Car. 1. The fee-simple thereof was conveyed to Sir George
Sands and his heirs in trust for Sir Ralph Freeman.
July 1633, Sir George having issue two sons. Freeman Sands
and George Sands, Sir Ralph Freeman devised part of the m.anor
to Freeman Sands and his heirs, and other part thsreof to George
the son and his heirs, and devised all the rest of the manor to Free-
man Sands and George his brother, and all such other sons as Sir
George should have by Jane his wife, and their heirs, and made Sir
George Sands and Ralph Freeman executors, and appointed them
to convey the term according to these trusts.
Ralph Freeman the executor refused, Sir George took administra-
tion alone to him and his wife cum testarnento aniiexo.
1635. Freeman Sands died without issue, George being his bro-
ther and heir.
Afterwards Sir George by ./a ??e his wife had issue another
Freeman Sands, but no conveyance was executed of the [ 250 "j
term or inheritance.
1655. Freeman Sands murdered his brother George, who dying
without issue all that right or trust, that was in George the brother,
descended and survived to Freeman.
7 ^ug. 1655. Freeman the son was attainted of felony.
22 Nov. 1655. Sir George takes administration to his son George.
The land being held of the king, as of the manor of East-Green-
(h) 1 Sid. 403.
[3] Copyhold estates, in treason, are forfeited to the lord of the manor, not to the
crown. Com. Dig. "Coprjhold." {M.) 1. But see 2 Haick. c. 119. s. 7.
250 HISTORIA PLACITORUM CORONA.
wich, the king's attorney preferred an information against Sir Georsre
Sands in the exchequer-chamber to have a conveyance both of the
term and inheritance to be executed by Sir George Sands unto the
king, being the lord of whom the land was held; but it was una voce
resolved, I. That as to the inheritance, tho there were a trust for
George the son, and that trust descended unto Freeman the mur-
derer, as his brother and heir, and was in him at the time of the
death of his brother and at his attainder, as to the greatest part of
the lands, and as to the residue of the lands the trust was originally
for Freeman Sands, yet in as much as Sir George Sands continued
seized of the fee-simple, and so was tenant to the king, tho subject
to a trust; yet the trust escheted not to the crown, but Sir George
held it discharged of the trust, 2. That the term for years was not
extinguished in law by the accession thereof to Sir George, as execu-
tor or administrator, tho Sir George had the fee-simple, because it
was en autre droit, that he had the term. 3. That if the term for
years had been a term in gross in trust for the party attaint, then by
the attainder of felony the king had been entitled thereunto, not in
point of eschete, but by his prerogative, having bona <§' catallafelo-
num. 4. But this term being to attend the inheritance the trust
thereof was not like the trust of a chattle in gross, but was to wait
upon the inheritance (and otherwise it had been impossible for the
greatest part to have descended from George Sands to his brother
Freeman Sands, unless it waited upon, the trust of the inheritance)
therefore the inheritance remaining in Sir George now dis-
r 251 3 charged of the trust by the attainder of Freeman Sands the
trust of the term shall also remain in him, for it is a kind of
incident or appurtenant to the inheritance.
And in this case the case of Sir fValter Raleigh was cited, which-
was Mich. 7 Jac. in Camera Scaccarii. Sir Waller Raleigh being
possessed of a long term for years of the manor of Sherburn, intend-
ing to obtain the inheritance assigned this term to his son an infant
upon pretense for a trust for his son, but really in trust for himself.
Sir Walter Raleigh then purchased the inheritance and made a
settlement upon his son, but the same was defective, whereby the
fee-simple remained in Sir Waller.
1 Jac. Sir Walter was attainted of treason, and afterwards the
king granted all the goods and chattels real and personal of Sir
Walter to Shelbury and Smith in trust for Sir Walter's wife and
children.
Sir Walter Raleigh was executed, and upon an information in
the exchequer, M. 7 Jac. it is declared and decreed, that the lease
was in trust for Sir Walter, and therefore forfeited by his attainder,
as well as if it had continued in him, and that it should be cancelled,
and not incumber the reversion in fee-simple.
So that according to this resolution this trust for Sir Walter was
not a chattle, for then it had passed to Shelbury and Smith; but it
was a kind of appurtenant to the inheritance, and together with it
was forfeited by the attainder, the conveyance of the inheritance
HISTORIA PLACITORUM CORONiE. 251
being defective, and accordingly at this day it is held by those that
derived under the patent of king James.
6. At common law the king by attainder of treason was not
entitled to any chatties, that the party had en uulre droit, as exe-
cutor, or administrator, or in right of a corporation aggregate.
But the husband possessed of a term in right of his wife forfeits it
by attainder of treason, felony, or out-lawry; but as to lands of
inheritance, if the husband be seized in right of his wife, and is
attainted of treason, the king hath the freehold during the coverture;
and so if tenant for life be attainted of treason, the king
hath the freehold during the life of the party attainted ; and [ 252]]
so he had before the statute of 26 H. S. by the attainder of
tenant in tail.
Touching forfeitures for treason by a corporation sole, or aggre-
gate, somewhat is observable.
At common law and still to this day in the case of a corporation
aggregate, as dean and chapter, mayor and commonalty, where the
possessions are in common in the aggregate corporation, nothing was
or is forfeited by the attainder of the head of the corporation, as the
dean, mayor, ^^c.
At common law a sole corporation, as an abbot, bishop, dean,
prebendary, parson, vicar, by attainder of treason forfeited to the
king the profits of their abbey, bishoprick, prebend, during their
incumbency; but their successors were not bound by that forfeiture,
for tho the profits as they arose belonged to their persons, yet the
inheritance was in right of their church, and so not forfeited.
But by the general words of the statutes of 26 and 33 H. 8. and
by the exclusive saving of the rights of others, other than the suc-
cessors of the persons attaint, these sole corporations forfeited the
inheritance, and their successors were bound by such attainder ; for
it is apparent that //, 8. had not only in prospect the dissolution of
monasteries, but had a resolution to curb the clergy, who were too
obsequious to the pope and his power.
And therefore there were several attainders of abbots of high
treason, whereupon the king seized their possessions, as dissolved
thereby, as appears by the statutes of 27 H. 8. cap. 28. and 3\ H. Q.
cup. 13. touching monasteries, tho the king rested not barely upon
such attainders; but by the statutes of 27 and 31 H. S. their posses-
sions are settled in the crown by those acts, and with this agrees the
book of Dy. 289.
And therefore we may observe in the statute of 1 Mar. sess. 2. cap.
16. for the attainder of the archbishop of Canterbury a cautious pro-
viso was added, that it should not prejudice his successors touching
the possessions of his see; this was to avoid the question, that other-
wise might have arisen upon the general words of the forfeitures
thereby enacted.
But now by the act of 5 <5' 6 Ed. 6. cap. 11. this matter
seems to be settled, for whereas by the statute of 26 //. S. [ 253 ]
cap. 12. a person attaint of treason is to forfeit all the lands ,
VOL. I. — 28
253 HISTORIA PLACITORUM CORON^E.
which he had by any right, title or means, saving the right of others,
other than the heirs and successors of the person attaint, which con-
fiscated the inheritance of sole corporations attaint of treason, the
statute of 5 Sr 6 E. 6. cap. 11, enacts specially^ that persons attaint of
treason shall forfeit the lands, which they have of any state of inhe-
ritance in tlieir own right, and saves the right of all persons, other
than the persons attaint^ and their heirs, which restores and preserves
the right of successors, as it was at common law,
7. By the common law all hereditaments, whether lying in tenure
or not, as rents, advowsons, commons, corodies certain, are forfeited
to the king by attainder of treason ; but such inheritances, as lie
purely in privity, appropriate to the person, are not forfeited neither
at common law, nor by any special statute, as a foundership, or corody
uncertain,
8. At the common law by attainder of felony or treason of the
husband the wife lost her dower: by the statute of 1 E. 6. cap. 12,
no attainder of treason or felony excludes her dower; but by the
statute of 5 <^' 6 ^. 6 c. 11. the husband attaint of treason the wife
shall lose her dower; and so it stands at this day, except in treasons
enacted by particular statutes, where dower is saved to the wife,
notwithstanding the attainder of her husband of treason, as upon the
statute of 5 Eliz. cap. 11, for clipping money, 18 Eliz. cap. 1, for
impairing money, 5 Eliz. cap. 1. refusing the oath of supremacy the
second time, and some others.
And thus far concerning the things forfeited by attainder of trea-
son, now,
II. I shall consider in what kind or degree the king hath these for-
feitures of lands,
1, Altho these be called royal eschetes, yet the king is not in,
purely, as by an eschete, for he hath those forfeitures injure coronae
of whomsoever the lands be immediately held; yea, tho they are held
immediately of the king, he hath them not in point of eschete, but
jure coronse or prerogativae regalis.
47 E. 3. 21 b. A manor is held of the king as of his
[ 254 ] honor of D. and the manor eschetes for the felony of the
tenant, it is now parcel of the honor, and therefore by the
book if the king grant it out again generally, it shall be held of the
honor, but if it eschete for treason, it is no parcel of the honor, and
if it be granted out generally it shall be held in capite, 6 E. 3, 32.
a. accordant adjudge: vide the case of Saffron IValden, Morels
Rpp. n. 301. (e) <§• ibidem n. 405, the case of the borough of South-
war k.{k)
2, Where land comes to the crown by attainder of treason all
mesne temires of common persons are extinct; but if the king grants
it out, he is de jure to revive the former tenure, for which a petition
of right lies. 46. E. 3. 19.(/)
3, If tenant in tail of the gift of the king, the reversion in the
(i) Mo. 159. {k) Ma. 251.
(/) I lake it, this should be H. 46 E. 3, Petition 19,
HISTORIA PLACITORUM CORONA. 254
king, makes a lease for years, and then is attainted of treason, the
king shall avoid that lease, for the king is in of his reversion, tho
tl:e tenant in tail have issue living: this hard case is so adjudged in
Conilnentaries jJustin's case(/«) in fine, and yet if such tenant in
tail had, after such lease, bargained atid sold, or levied a fine to the
king, he should be bound by such lease as long as there is issue.
H. 22 Jac. B. R. Croker and Kelsey.{n) 1 Rep. %Alton Woods
case.(o)
III. The third thing I propounded was the consideration of the
eschetes in case of treason to such as have royal franchises, or
counties palatine, as Durham, S,'C.
1. At common law divers lords had by special grant or in right of
their counties palatine royal eschetes of the lands held within their
franchises of persons attaint of treason against the king.
Such was the royal franchise of the manor of Wreck in John
Darcy's case, 6 E. 3. 31. 6.
It appears in the parliament-roll 9 E. 2. m. 8. that the bishop of
Durham claimed among divers franchises between the waters of
Tyne and Tese, and Norhamshire and Bedlingtonshire in the county
of Northumberland , the forfeitures of war, namely the lands
of those who held lands within that precinct, who adhered [255 3
to the enemies of the king.
And after many debates in parliament 2 E. 3. that liberty was
allowed him by the judgment of the king and liis council in parlia-
ment.
Clans. 1 E. 3. part 1. m. 10. and p. 2. m,. 20. the precedents of the
allowance of that liberty being produced, viz. that Anthony bishop
o{ Durham had the forfeiture of Castrum Bernardi by the forfei-
fure oi John de Baliol, the manors of Hert and Hertness by the for-
feiture of Robert Bruce, the manor of Gretham, that was Peter of
MontforV s ; and, upon the consideration of the several pleadings in
those cases, concordatum est per nos & totum concilium nostrum in
ultimo parliamento, quod episcopus habeat suam libertatem de hu-
jusmodi forisfacturis juxta tenorem & effectum cartae proavi nostri,
ideo vobis mandamus, [viz. the custos of these lands) quod de terns
& tenementis infra libertatem episcopatCis prsedicti, & in pra3dictis
locis de Norhamshire & Bedlingtonshire, in manu nostra & in cus-
todia nostra per forisfacturam guerras existentibus manum nostram
amoventes vos ulterius de eisdem non intromittatis, and the like par-
ticularly after Claus. 1 E. 3. part 2. m. 20. an amoveas mantis for all
the lands of Guido de Bello Campo Comes Warwick, §'Z/i de rege te-
nuit in capite infra libertatem cpiscojiatus Dunelmensis, and likewise
for the manors of Gainsford, Hert, and Hertness in the hands of
Roger de Clifford seised for the forfeiture of war of John de Baliol
and Robert Bruce; only the patentees not to be put out without an
answer.
So that it is apparent, that at common law the bishop of Durham
im) Plowd. 560. a. (n) Cro. Jac. 688. 1 R. A. 843. (o) 1 Co. 40. b.
555 HISTORIA PLACITORUM CORONA.
liad the royal forfeitures of war (which was treason) for such lands
as were within his liberty, tho they were formerly held of the king
immediately in capite, if they lay within the precinct of his county
palatine; and tho by the statute of IE. 6. the said bishopricie was
dissolved, yet by the statute of 1 Mar. Pari. 2. cap. 3. that act is re-
pealed and the bishoprick with its franchises revived.
2. Yet farther, tho this act of 25 E. 3. declares, that all such for-
feitures belong to the king, yet this act did not derogate from the
franchise of the bishop of Durham or others, that had that
[] 256 ]| royal liberty of forfeitures for treason, because it was in
effect but a declaration of the common law, or at least an
ascertaining of it without prejudice to those, that had these franchises
of royal forfeitiu'es, either by charter, or by reason of their county
palatine by prescription; and this is agreed by all the judges in the
case of the bishop of Durham P. 12. E/iz. Dy. 288. and accordingly
Hot. Pari. 1. E. 4. n. 20. 8,' sequentibiis, where by act of parliament
a great many noblemen, that were of the party of .^. 6. were upon
the coming of E. 4. to the crown attainted and their lands forfeited
to the king; and such as were within the county palatine oi Lancas-
ter ^xme.xe& to the duchy of Z^ancfirs/er, and the rest lodged in the
crown; yet there is a special provision and exception of the latids
within the bishoprick o{ Durham, viz. between the waters of Tyne.
and Tese, and in the places called Norhamshire and Bedlingtonshire
within the county of Northumberland, in which liberty and place
the bishop o( Durham and his predecessors of time, whereof there
is no memory, have had royal right and forfeiture of war in the right
of the cathedral church of .9/. Cuthbert o{ Durham, as by concord
in parliament in the time of the progenitors of our lord the king Ed-
ward IV. it hath been assented.
3. Altho by the statute of 26 H. 8. and 33 H. 8. before-mentioned
it is enacted, that the king shall have the forfeiture of all lands, Sf-c.
of the persons attainted of treason, yet in as much as in those acts
there is a saving of the rights of others, the forfeitures for all trea-
sons, that were within the statute 25 E. 3. and consequently were
treasons at common law, by tenant in fee-simple, are saved to the
bishop of Durham, and those that have such royal franchises of for-
feiture of treasons; for these stand as they did before, by the opinion
of five judges agaitist four. P. 12. Eliz. Dy. 289. in the bishop of
Durham'' s case.
4. But as to the forfeiture for new treasons enacted by any of those
statutes the lords of franchises shall not have their franchise; this
was agreed by all : but those new treasons that were enacted in the
time of H. 8. or before, are all repealed by the statute of 1. Mar.
cap. 1.
[ 257 ] 5. But as to treasons, that stood by the statute of 25 E. 3.
and therefore not repealed by 1 Mar. cap. 1. yet as to the
forfeitures of tenants in tail, or of lands in the right of churches or
monasteries, the person that hath jura regalia shall not have them,
because the king before the act of 26 //. 8. was not entitled to the
HISTORIA PLACITORUM CORON^E. 057
forfeitures of those estates; and the statute of 26 H. 8. stands unre-
pealed as to the forfeitures for treasons wiihin the statute of 25 E. 3.
these are the points resolved in that case of 12 Rliz.
And therefore it is observable, that in the statutes of 5 EHz. c. 11.
whereby cli|)pina^ is made treason, tho the forfeiture of lands is only
during the offender's life, and no corruption of blood, nor loss of
dower, yet there are special proviso's, that ail persons, which have
any lawful grant to hold and enjoy the forfeitures of lands, tene-
ments, goods, or chattels of offenders, and men attaint of iiigh trea-
son within any manor, lordship, town, parish, hundred, or other pre-
cinct within the realm oi England and IVales shall and may at all
times have like liberty to take, seize, and enjoy all such forfeitures of
lands, tenements, goods, and chattels, as shall come or grow within
their liberties by force of the attainder of any person upon any offense
made treason by this act, as they might have done by virtue of any
grant to them heretofore made.
I do not find the like clause to my remembrance in any other acts
of new treason either in that of 1 Mar. sess. 2. cap. 6. for counterfeit-
ing the privy signet or sign manual, or in that of 1 (§• 2 F/i. <§• Mar.
cap. 11. for importing foreign counterfeit coin made current by pro-
clamation, or in that of 18 Eliz. cap. 1. concerning washitig of coin,
nor in any of those temporary acts made for the safeguard of the
queen's person, (§'C. so that upon the reason of the resolution of
12 Eliz. the patentees of goods or lands of traitors by patents granted
before those acts, and particularly the bishop of Durham, Whose
claim is by prescription, caiuiot have the goods or lands of persons
attainted for those new treasons: vide 13 Eliz. cap. 16, a special
provision in the act of attainder of the earl of IVeslmoreland and
others for the rebellion in the North, that the queen shall
have and hold against the bishop o{ Durham and his sue- [ 258]
cessors the lands, tenements, goods and chattels of the per-
sons attainted wuhin the county palatine and franchise of the said
bishop.
Nay, I cannot see how the bishop of Durham can either by his
antient charters or prescription claim the goods or lands of persons
attaint for bringing in counterfeit coin contrary to the statute of
25 E. 3. for it seems that that was not treason at common law, as
may reasonably appear by what has been before said touching that
subject. [3]
See a learned treatise, intitutled, Considerations on the Law of Forfeitures for High
Treason; (supposed to be) written by the Hon. Cha.Yorke, sometime Attorney General to
King George III. and atlerwards Lord High Chancellor of Great Britain, per totum.
Wilson.
[3] The clause in the 1 Ann. c.21.and that in the 17 Geo. 2. c. 39. limiting the periods
when forfeiture for treason should be abolished, are repealed by the 39 Geo. 3. c. 93. So
that forfeiture remains in England as at common law, in the cases of treason and mur-
der; in other crimes, no attainder, by the 54 Geo. 3. c. 145. shall extend to the disinherit-
ing of any heir.
See Consider, on the Law of Forfeitures, by Yorke. 2 Hawk. c. 119. 4 Bl. Com. 381.
3 Burn's Just. {edit, of 1845.) 106.
258 HISTORIA PLACITORUM CORONA.
CHAPTER XXIV.
CONCERNING DECLARING OF TREASONS BY PARLIAMENT, AND THOSE
TREASONS THAT WERE ENACTED OR DECLARED BY PARLIAMENT
BETWEEN THE 25 OF E. 3. AND THE 1 MAR.
Altho the order of the statute leads us to consider of petit treason
in the next place, yet because I intend to absolve the whole dis-
course of high treason and naisprision of treason, before I descend to
crimes of an inferior nature, I shall proceed to a full consideration of
the whole matter specially relating to high treason, and so far as the
same is not common to other capital offenses: the statute therefore
proceeds, ''And because many other like cases of treason may hap-
pen in time to come, which a man cannot think nor declare at this
present time, it is accorded, that if any other case supposed treason,
which is not above specified, doth happen before any justice, the jus-
tice shall tarry without going to judgment of the treason, till the cause
be shewed and declared before the king and his parliament,
|[ 259 ]] whether it ought to be judged treason or other felony;
and \{ per case any man of this realm ride armed covertly
or secretly with men of arms against any other to slay him or rob
him, or take him or detain hiiTi, till he hath made fine or ransom to
have his deliverance, it is not the mind of the king or his council,
that in such case it shall be judged treason, but shall be judged felony
or trespass according to the law of the land of old time used, and ac-
cording as the case requireth, (§'c."
This clause consists of two parts, the former, how treasons not
specially declared by this statute shall for the future be settled. 2. It
declareth, that a particular offense therein mentioned, that was in
truth formerly held to be treason, shall not for the future be taken to
be so.
As to the former of these clauses touching the declaring of trea-
sons not declared by this act, I shall pursue the history thereof at
large in what follows, only at present I shall subjoin these few ob-
servations.
1. The great wisdom and care of the parliament to keep judges
within the bounds and express limits of this act, and not to suffer
them to run out upon their own opinions into constructive treasons,
iho in cases, that seem to have a parity of reason {like cases of trea-
son) but reserves them to the decision of parliament: this is a great
security, as well as direction, to judges, and a great safeguard even
to this sacred act itself.
And therefore, as before I observed in the chapter of levying of
war, this clause of the statute leaves a weighty memento for judges
to be careful, that they be not over hasty in letting m constructive or
interpretative treasons, not within the letter of the law, at least in
HISTORIA PLACITORUM CORONA. 259
such new cases, as have not been formerly expressly resolved and
settled by more than one precedent.
2. That the authoritative decision of these casus omissi is reserv-
ed tothe king and his parliament, viz. the king and both his houses
of parliament, and the most regular and ordinary way is to do it by
a bill declaratively; and therefore aliho we meet with some
declarations by the lords house alone in some particular [ 260 ]]
cases, as in that of the earl of Northumberland, anno 5 H. 4.
and that of Talbot 17 B. 2. tho they be decisions and judgments of
great weight, yet they are not authoritative declarations to serve this
act of 25 E. 3. but it must be by the king and both houses of parlia-
ment.
As to the latter oi these, it has been formerly discussed in the
second chapter.
This, at common law, was held treason, and the particular reason
of the adding thereof in this place was, in effect, to reverse the judg-
ment given in B. R. P. 2\ E. 3. Rot. 23. in Sir John Gorbegge's
case;(a) and touching this whole matter of riding armed, <5*c. vide
qux dicta sunt supra cap. 14. p. 135. (§• seq.
Only the printed statute varies from the parliament-roll of 25 E. 3.
p. 2. n. 17. for whereas it is printed in the late statutes [covertly or
secretly) the parliament roll is chivach arme descovert ou secret-
ment, and accordingly the old written manuscript statutes are writ-
ten thus, chivach arme descovert ou en privy en le realm 4"C., which
misprmting possibly hath made some mistakes in judgments given of
high treason, as if to ride privily and covertly upon such a private
attempt were not treason; but to ride discovert, openly, were treason,
when in truth neither in one case or the other it is treason, neither at
this day nor at common law, if it be only upon a particular or pri-
vate quarrel, as in the case of 20 ^. 1. between the earls of G/ouces/er
and Hereford;[b) and this of Gerbegge, tho it were more guerrino <§•
vexillis explicatis.
But now to resume what is before promised, r;/r. touching the first
matter, namely treasons not declared by the statute of 25 E. 3. we
shall find, that between that statute and 1 Mar. there were treasons
enacted or declared of these kinds:
1. Such as were simply declarative treasons, or so many exposi-
tions of the statute of 25. E. 3.
2. There were new treasons, that were simply enacted, and not
declared only that were perpetual in their institution, but repealed by
the statute of 1 Marias.
3. There were new treasons, that seem only temporary or
fitted to the reigns of those kings, in whose time they were [261 ]
made.
4. There were some treasons, that were perpetual, but more ex-
plicite declarations or rather expositions of the statute of 25 E. 3.
which yet stand repealed by the statute of 1 Mar.
(a) Videavlea p. 80^183.
(6) Supra p. 135. Ryl. piac.parl. p. 11.
261 HISTORIA PLACITORUM CORONA.
And here 1 must advise the reader to take notice of these cau-
tions.
1. Because the hereafter mentioned statutes are many, and con-
sisting of divers clauses, that he rely not barely upon the abstracts
thereof here given, because possibly there may be mistakes or omis-
sions in those abstracts, but peruse the statutes themselves in the
boolfs at large.
2. That tho generally it be a fair topical argument, that when
offenses are made treasons by new and temporary acts, they were not
treasons within the statute of 25 E. 3, for if they were, they needed
not to have been enacted to be treason by new statutes, as introduc-
tive of new laws in such cases; yet that doth not hold universally
true, for some things are enacted to be treason by new, yea and
temporary laws, which yet were treason by the statute of 25 E. 3. as
will appear in the sequel.
And therefore the statutes of 1 <§- 2 Ph. <S' M. cap. 3. 1 E. 6. cap.
12, 23 El.iz. cap. 2. making several offenses felony have this wary
clause, the same not being treason vnthin the statute of 25 E. 3.
And hence it was, that whereas by the statute of 13 Eliz. cap. 1.
compassing the queen's death and declaring the same by writing or
printing is enacted to be treason during the queen's life, but the
delinquent is by that statute to be charged therewith within six
months, and Throckmorton was generally indicted for compassing
the queen's death, and the overt-act was by making a writing declar-
ing convenient landing places for the Spanish forces, and the naming
of divers popish gentlemen in writing, who would be assistant to
that design, and communicating it to the Spanish embassador, and
Throckmorton excepted to the proceeding, because not within six
months according to the statute of 13 Eliz. that exception
[ 262 ] was overruled, because it was a charge of treason and an
overt-act within the statute of 25 E. 3. which hath no such
restriction, and thereupon he was convict and executed. Camd.
*dnnals sub anno 1584. p. 298. and the like was done upon the like
exception in the case of the earl of Arundel; quod vide Camd.
Annals sub anno 15S9. /?. 426,
3. But where an act of parliament made for the safety of the king
or queen's person or government enacts any offense to be felony
only, or a misdemeanor only punishable by fine and imprisonment,
without that wary clause above-mentioned, it is a great evidence
and presumption, that the same was not treason before, and a judg-
ment of parliament in point, for it can never be thought, that the
parliament would in such cases abate the extent of 25 E. 3, or make
that less than treason, which was treason by that act.
I shall as near as I can piu'sue the order above-mentioned, but
some intermixtures there will necessarily be of the many particular
treasons enacted by some statutes, some of which were within the
statute of 25 E. 3, and 1 shall follow those in every succeeding king's
reign.
In the time of king Edward III. I find no declarations of treason
after the statute of 25 E. 3.
HISTORIA PLACITORUM CORON^E. 262
Only I find somewhat like it in the attainder of Thorp chief justice
of the king's bench for bribery(c) and other offenses, who was there-
upon sentenced to death, before special commissioners(rf) assigned
ad jifdicandum secundum voluntatevi regis, in respect of the oath
he had made to the king and broken, whereby he had bound himself
to that forfeiture, *« ale encountre son serement : it is true he had
judgment, but there was no execution ; this judgment and the whole
proceeding is entered in patent-roll of 24 E. 3. part 3. m. 3. dors.
and was afterwards removed into the lords house in the parliament
held in oclabis purijicationis 25 E. 3. which was a year before the
parliament held Wednesday in the feast of St. Hillary 25 E. 3.
wherein the declaration of treason was made; and in that
parliament of octahis purijicationis, n. 10. the judgment [263 3
was affirmed good, de puis qe se obligea mesme par son
serement a tiel pennance, sil fait al encountre, & connusseit, quil
av6it receive douns countre son dit serement: but with this caution
for the future to prevent such an arbitrary course of proceeding,
& sur ceo y fuit accord par les grants de, mesme le parlement, qe si
nul tiel case aueigne desore an evant de nul tiel, que nostre seigneur
le roy prigne devers lui des grants, qe lui plerra, & par lour bone
ayyse face outre ce qe plese a sa royal seignory ;(e) but this comes
not to our purpose concerning treason.
As to the time of R. 2. it was a fruitful time for declaring and
enhansing of treason in parliament. Hot. Pari. 3 R. 2. n. IS. pars 1.
the case of Jean Imperiall(f) who was sent as agent from the duke
and commonalty of Genoa, and coming hither by the king's safe-
conduct was murdered: the inquisition before the coroner was
brought into parliament, and in pursuance of this clause of 25 E. 3.
it was declared by the king, lords, and commons, to be treason.
This declaration being by the king and both houses of parliament
was a good declaration pursuant to the act of 25 E. 3. but is not of
force at this day, 1. Because it was but a particular case, and ex-
tended not to any other case, as a binding law but only as a great
authority. 2. Because it being not within the express provision of
the statute of 25 E. 3. it stands wholly repealed as treason by the
statutes of 1 E. 6. and 1 Marix.
Rot. Pari. 1 R. 2. n. 38. the judgment against Gomeneys and
Weston for betraying the king's castles in France mentioned before
cap. 15. p. 16S. where Weston had judgment to be drawn and hanged;
this judgment was given by the lords at the petition of the commons
in parliament, but makes not much in the point of declaration of
treason, because,!. If done, as is supposed, by treachery and bribery,
(c) He was justice of assize in com'' Lincoln, and took bribes of several to stay an exi-
gent upon an indictment for felony, that should have issued against them.
(d) The earls of Arundel, Warwick, Sfc.
(e) There is likewise a proviso added, that this should not be drawn into precedent;
sed solummodo versus eos, qui prcedictum sacramentum fecerunt Sf fregerunt, Sf habent
leges Angliae regales ac custodiendum.
(/) Co. P. C.p. 8. vide supra p. 83.
VOL. I. — 29
263 HISTORIA PLACITORUM CORON.S:.
it was an adherence to the king's enemies. 2. Being a declaration
or judgment only by the lords, and not formally by the king, lords
and commons, it is not such a declaration of treason, as the
[ 264 ] act of 25 E. 3. requires in cases of treason not thereby de-
clared.
Rot. Pari. \\ R. 2. pars 2. per tofum, the great appeal in parlia-
ment by the duke of Gloucester and others against the archbishop
of York, duke oi Ireland, Tresilian, Uske, Blake, Holt, and others
containing divers articles, which surely were not treason within the
statute of 25 E. 3. yet had judgment of high treason given against
them by the lords in parliament. (i,')
Upon the impeachment of the commons against Simon Burlsy
Beanchamp, and others, many of them had likewise judgment of
high treason given against them by the lords in parliament. (*)
Altho the king did in some kind outwardly agree to these judg-
ments, and the commons were active in it, and Rot. Pari. 11 R. 2.
pars L n. 50. public thanks were given to tlie king by the lords and
commons in full parliament, de ceo, qil lour avoit fait cy plein jus-
tice, yet this was no declaration of parliament of treason pursuant to
the statute of 25 E. 3. because the king and commons did not consent
per rnodum legis declarative, for the judgment was only the lords.
2. Because it was but a particular judgment in a particular case,
which was not conclusive, when the like cases came before judges.
This parliament of 11 R. 2. was repealed by the parliament of
21 R. 2. and that of 21 R. 2. also repealed, and the parliament of
11 R. 2. enacted to be holden according to the purport and effect
of the same by the statutes of 1 H. 4. cap. 3 & 4. but this did not
alter the statute of 11 /?. 2. and make those judgments, which were
given by the lords in 11 7?. 2. of any other value than they were and
consequently amounted not to any declaration by parliament, that
these which the lords adjudged treasons in 11 ^. 2. were or ought to
be so held; and if any such construction might be made upon the
confirmation of 1 H. 4. cap. 4. yet the same was repealed by the
statute of 1 H. 4. cap. 10. in the same parliament; and if not, yet
certainly 1 E. 6. and 1 Mar. have wholly taken away the force of
those declarations, as shall be shewed.
Rot. Pari, n R. 2 n. 20. Talbot^ s case, in conspiring the
[[ 265 ] destruction of the dukes of Aquitain and Gloucester the
king's uncles, and other great men, Et sur ce firent divers
gents lever armies t^* array es a f aire guerre en assembles Sc congre-
gations in tres grand ^- horrible numbre: this was declared treason
by the lords in parliament, and a proclamation issued to render him-
self, or otherwise to be attainted of treason: how far this was treason
or not within the statute of 25 E. 3. hath been before considered, but
certainly, if it were no treason declared by the particular purviews
of 25 E. 3. it is no such authoritative declaration of treason in par-
Uament, as this act requires in treasons not declared; and if it were
ig) See Stale Tr. Vol. I. p. 1. («) Ibid. p. 15.
HISTORIA PLACITORUM CORONiE. 265
such an authoritative declaration, it binds not now as such, because
all treasons are reduced to those expressed in the statute of 25 E. 3.
by the statutes of 1 H. 4. cap. 10. 1 E. 6. cap. 12. 1 Mar. cap. 1. and
treasons declared, as well as new treasons enacted, are by these
statutes set aside, farther than the very declaration of 25 E. 3. ex-
tends.
Bof. Pari. 21 R. 2. quod vide inter statuta 21 R. 2. cap. 2, 3, 4,
12. some new statutes of treason were enacted, others were declared;
by cap. 2. it is enacted, that the procurers of any new commission
like that, (for the obtaining of which the archbishop of Canterbury,
4'c. were in that parliament attainted) being convict in parliament
should be guilty of high treason: again, c«/?. 3. If any be convict
in parliament of the compassing of the king's death, or to depose
him, or to render up his homage to him, or of raising war against
the king; and cap. 4. The procurers or counsellors to repeal the
judgments given in that parliament, if convict in parliament, are
guilty of high treason: other treasons were declared, as namely those
nine rank answers to the king's questions, which are all recited and
afiirmed, and adjudged good and sufficient by the 12th chapter of
that parliament; other points were judged, as namely, that the pro-
curing of the commission for regulating the miscarriages in govern-
ment anno 7 R. 2. and the execution thereof by the archbishop of
Canterbury and others was high treason.
And tho it is true, that some of the points enacted to be
treason by the 3d chapter were in truth treasons by the f 266 1
statute of 25 E. 3. if here were an overt-act, namely com-
passing the death or deposing the king, or levying war, yet these
statutes and these declarations by the parliament of 21 R. 2. are
■wholly set aside; and the statute of 25 E. 3 governs the whole mat-
ter of high treason, notwithstanding any of theextensions, enactings,
or declarations of the parliament of 21 R. 2. or any of the judges
therein-mentioned, viz. Belknap, Tresilian, Holt, Fulthorp, Burgly,
Thirlinge, Bikhill, and Clapton, for the parliament of 21 J?. 2. is
wholly repealed by 1. H. 4. cap. 3. S,- 4. and the parliament of
11 R.2. wherein Belknap and Tresilian were judged traitors for
delivering those extravagant opinions(A) is revived and affirmed;
and also by the statutes of 1 E. 6. and 1 Mar. the treasons enacted
or newly declared by the parliaments q>{ \\ Sf 2\ R.2. are repealed.
And tho those opinions of the judges Tresilian, Thirlinge and
the rest had the countenance of the parliament of 21 R. 2. yet they
had the discountenance of the parliament of 11 iff. 2. and 1 //. 4.
which repealed the parliament of 21 R. 2. and stand at this day
unrepealed in their full strength, excepting only such treasons as
were newly made, or newly declared by those parliaments: tho the
statutes of 1 E. 6. and 1 Mar. have taken away those treasons,
which either the statute of 11 ^. 2. or 1 H. 4. had introduced more
than were in the statute of 25 E. 3. yet it hath not taken away the
(A) Co. P. C. p. 22.
266 HISTORIA PLACITORUM CORONA.
efficacy of the parliaments of 11 7?. 2. and 3 H. 4. as to their decla-
rations, that the extrajudicial opinions of those judges were false
and erroneous; but in that respect the parliaments of 1 H. 4. and
11 7?. 2. are of force, as to the damning of those extravagant and
unwarrantable opinions and declarations.
I come now to the time of Henry IV. wherein I find little: in
anno primo in parliament inter Placila Coronse, John Hall wdiS
convict before the lords in parliament of the murder of the duke of
Gloucester, and judgment given by the \oxAs per assent dn ray, that
altho it were only murder, yet the offender should have the judg-
ment of high treason, viz. to be drawn, hanged, embovvelled,
[ 267 ] his bowels burnt, his head cut off, and quartered, and his
head sent to Cnlice, where the murder was committed,
which was executed by the marshal accordingly: this was no decla-
ration of treason, but a transcendent punishment of the murder of so
eminent a person.
1 H. 4. cap. 10. " It is accorded, that in no time to come any
treason be judged otherwise than it was ordained by the statute of
king Edward III," Tliis at once swept away all the extravagant
treasons introduced in the time of R. 2. either in over much favour
of popularity, or over much flattery to prerogative, for they were of
both sorts.
Rot. Pari. 5 H. 4. n. 12. There is a declaration of an acquittal
of the earl of Northumberland from treason; quod vide antea
cap. 14. p. 136. but I find no declaration nor act of new treason, in
the time of H 4. he was as good as his promise by the act of 1 H. 4.
cap. 10. for he contented himself with the declaration made by
25 E. 3.
In the time of H 5.
By the statute of 2 H. 5. cap. 6. " It is ordained and declared
that manslanghter, robbery, spoiling, breaking of truce, and safe-
conducts, and voluntary receipt, abetment, procurement, concealing,
hiring, sustaining, and maintainitig of such persons to be done in
time to come by any of the king's subjects within England, Ireland,
or PVales, or upon the main sea shall be judged and determined
treason done against the king's crown and dignity ; and the conser-
vator of the truce to have power by the king's commission and by
the commission of the admiral to inquire thereof:" But this statute
as to treason is particularly repealed by the statute of 20 H 6. cup. 11.
but whether the general statutes of 1 E. 6. cap. 12. 1 Mar. cap. 1.
had repealed it as to treasons done upon the sea may be a question,
because it hath been ruled, that those statutes extend not as to trials
of treason done upon the sea by the statute of 28 H. 8. cap. 1,5. de
quo infra.
The statute of 3 H. 5. cap 6 S,- 7. it is true, is a declarative law,
that clipping, washing and filing the king's coin is treason within
the statute of 25 E. 3. and judges of assise and justices of
[ 268 1 peace have cognisance thereof; but even this declarative
HISTORIA PLACITORUM CORONA. 268
law is repealed by the statute of 1 Mar. as it is declared in the
statute of 5. Eliz. de quo an tea.
As to the judgment of treason given in Sir John Oldcaslle^s case
Rot. Pari. 5 H. 5. par. 1. n. U. tho the judgment be given in par-
liament, yet it is barely upon the account of compassing the king's
death, and of levying of war, which was expressly within the statute
of 25. E. 3. as appears before, cap. 14. p. 142.
Touching the times of H. 6.
Rot. Pari. 2. H. 6. n. 18. It appears, that John Mortimer was
committed for suspicion of treason against H. 5. and 23 Feb. 2 i/. 6.
brake prison, and escaped, for which he was indicted 25 Feb. 2 H. 6.
at GuHdhall, London, before commissioners o{ oyer and terminer
setting forth the matter, and that prisonam prxdictam, falso 8^- volun-
tarie /regit; the record by the king's command was sent into parlia-
ment, and by the king's commissioner ad tenendum parliament iim^
and the lords at the request of the commons, it was affirmed a good,
indictment, and Mortimer liad judgment to be drawn, hanged, and
quartered, and his lands and goods forfeited to the king by the judg-
ment of the lieutenant, lords, and commons, by an act made then for
that purpose.
This it is true was an authoritative declaration of treason in this
particular case pursuant to the clause of the statute of 25 E. 3.
But it rested not here, for in the same parliament, n. 60. a general
statute passed, "Que si ascun person soite indite, appelle ou prise par
suspicion de grand treason and pur cest cause soit commisse & detenus
in prison & escape volunterement hors du dit prison, que tiel escape
soit adjudge and declare treason, si tiel person ent soit duement attaint
selon la ley de terre. Et eient les seigneurs de fee en tiel cas les
eschetes and forfeitures de terres & tenements de eux tenus par tiel
persons issint attaints, come de ceux, que sont attaints de petit trea-
son; Et teigne cest estatute lieu & effect del 20 'our de Octobre dar-
rein passe tanque al prochein parliament.
" Ro'. Soit fait, come est desyre par la petition.".
This parliament began 20 Oct. 2. H. 6. [ 269 ]
The tilings observable hereupon are these, 1. That to
rescue a person, that is a traitor, out of prison was treason at com-
mon law, and so continues at this day within the statute of 25 E. 3.
2 Co. Instil, p. 589. and 1 H. 6. 5. b. 2. But if a man committed
for treason breaks prison and escapes, this is not treason at common
law. ■ 3. Tho it be felony by the statute de frangentibus prisonam,
yet it is not made treason by that statute. 4. But if it were treason
by that statute, yet it is corrected and made not treason by the statute
of 25 E. 3. and 1 H.A. and therefore in this case it was made treason
merely by the judgment of parliament, and statute of 2 H. 6, was but
temporary and expired by the next parliament. 5. That the judg-
ment itself in Mortimer'' s case, tho an authoritative declaration, was
not at all binding in other cases for two reasons, 1. Because it is
checked and controled as to any such effect by the general act of par-
liament of 2 //. 6. which was to continue only to the next parlia-
269 HISTORY PLACITORUM CORONA.
ment; and 2. Because it was but a particular judgment of parlia-
ment in that particular case, to wliich it was particularly applied.
But howsoever, that question is now put out of question by the
general act of 1 Mar. cap. 1. which enervates the force of this judg-
ment and declaration; for 1 A/«r. repeals declarative laws of treasons
as well as enacting laws, and leaves the judges to judge strictly ac-
cording to the statute of 25 E. 3. as if no such judgment had been
given in parliament. 2 Co. Instit. p. 589. and therefore it seems
strange to me, that the judges took any notice of 2 H. 6. in Bensted's
case to ground any opinion ou.{i)
And therefore, aUho in the late act of attainder of the earl of Straf-
ford, there was a proviso added, that it should not be construed, that
the treasons therein cFiarged should be a rule for judges to proceed
by, in other cases, it seems a cautious but needless proviso,
[7 0] because it was a particular judgment, that did not egredi
personam, and no general declarative law to serve the
statute of 25 E. 3. For there may be collateral reasons not only in
policy, but in justice sometimes for a parliament to vary the punish-
ment of crimes, in substance the same, when differenced by circum-
stances, in several persons.
8 H. 6. cap. 6. Burning of houses maliciously or wickedly to ex-
tort sums of money from those, whom the malefactors spare, is made
high treason with a retrospect to the first year of the king's reign,
saving to the lords their liberties, as in case of felony.
Two things are observable upon this act, 1. That had it not been
specially provided against, the lords had lost their eschetes by mak-
ing it treason. 2. That this act, tho perpetual in its constitution, yet
was repealed by 1 Mar. cap. 1. and alter that repeal it remained
felony, as it was before, and so continues to this day.
Rot. Pari. 11 H. %. n. 43. A petition that John Carpenter, who
had committed a barbarous murder upon his wife, for wliich he was
outlawed and in prison in the king's bench, might for example's sake
by authority of parliament be judged a traitor, and that the judges
might give judgment against him to be drawn and hanged, saving to
the lords their eschetes. Ro'. Pur ceo, quil semble encountre le
liberty de seint esglis le roy se avisera.
20 H. 6. cap. 3. Thecomingof people out of fFa/e* or the marches
of the same into the counties adjacent, and taking and driving away
cattle, and their abettors and receivers knowing thereof, is made
treason against the king, saving to the lords marchers, of whom the
offenders, receivers, or abetters held their lands, the forfeiture thereof
and of their goods and chatties, when attainted ; this act was to con-
ti'nue for six years : nota, the lords had lost their eschetes and for-
(i) Cro. Car. 563. Janes 455. It was tlie case in 1 //. 6. 5. h. and not the statute of
2 //. 6. on vvliicli the jiulfres {rrouiidcd their opinion, altlio as tliat opinion is exprcst in
Cro. Car. 583. and KeL 77. viz. that the breaking of a prison, wherein traitors be, is high
treason, tho the parties did not know, that there were traitors there, is not warranted by'
that case, which is of one, who brake prison, knoiving certain persons to be j^i'isoners in
the said prison for treason.
HISTORIA PLACITORUM CORONvE. 270
feiture of the offenders goods, if it had not been specially provided
for, because made treason and a new treason, which was not before,
for the lords marchers had not only forfeiture of goods of felons, but
royal eschetes and forfeiture of traitors goods for the most
part; but that franchise, which was by prescription, could [271 ]
not extend to new treasons.
I find nothing more relating to this matter in the time of Henry
VI.
The impeachment of the duke of Suffolk by the commons for
treasons and misdemeanors contained many articles of high treason
wiihin the statute of 25 E. 3. namely, adhering to the king's ene-
mies; but the whole matter being at last left to the king, he was
declared by the king clear of the treasons, and for the rest the king
by a kind of composition ordered liim to be banished for five years.
Rot. Pari. 28 H. 6 n. 18, 19, 20, S^-c.
As to the reigns of Edward IV. and Richard III. tho in those
great revolutions, that happened in the latter end of Henry VI. the
beginning of Edward IV. the time of Richard III. there are many
acts of attainder of treason of particular persons, that adhered to
either party then contending for the crown, according as the success
of war fell to one side or the other, as namely Rot. Pari. 38 H. 6.
n. 1. — 36, &,-c. many of the duke of York's party were attainted of
treason by act of parliament. Rot. Pari. 1 E. 4. n. 6. — 15, <§'C. the
numerous companies of the party of Henry VI. were attainted by
parliament; the like was done in the short regress of H. Q. 11 E. 4.
in a parliament held in that short resumption of the crown by Henry
VI. Again, the like was done in the parliament of 12 E. 4. upoti
the regress and re-expulsion of Henry VI. Again, Rot. Pari,
1 R. 3. divers persons of great quality, that opposed the pretensions of
Richard III. were attainted by act of parliament; and the like was
again done in the parliament of 1 H. 7. against the assistants of
Richard III. Every new revolution occasioned the attainder by
parliament of the most considerable of the adverse party ; yet in all
this time I find no general declaration or general enacting of new
treasons by parliament.
I come to the time of Henry VII.
In this time I find but one new treason, namely the statute of 4 H.
7. cap. IS. whereby the counterfeiting of foreign coin made current
in this realm is made high treason. .
But this act was repealed by the statute of 1 E. 6. cap. 12.
and 1 Mar. cap. 1. and another act made to the same pur- [ 272 ~\
pose in 1 Mar. sess. 2. cap. 6.
This wise prince duly considering the various revolutions, that had
formerly happened in this kingdom touching the crown especially to
the houses of Fork and Lancaster, and that every success of any
party presently subjected all that opposed the conqueror, to the pen-
alties of treason ; and weighing that, altho by his marriage with
the heir of the house of York, he had reasonably well secured his pos-
session of the crown, yet otherwise his title, as in his own right, was
272 HISTORIA PLACITORUM CORONA.
not without some difficulties; he therefore made a law, not to enact
treason, but to give some security against it, viz. 11 //. 7. cap. L
" That all persons, that attend upon the king and sovereign lord of
this land for the time being in his person, and do him true and faith-
ful service of alligeance in the same, or be in other places by his
commandment in the wars within this land or v/ithout, that for the
said deed and true duty of alligeance he or they shall be in no wise
convict or attaint of high treason, nor of other otfenses for that cause
by act of parliament, or otherwise by any process of law, whereby
he or any of them shall now forfeit life, lands, tenements, rents^ pos-
sessions, hereditaments, goods, chatties, or any other thing, but be for
that service utterly discharged of any vexation, trouble, or loss; and
if any act or acts, or other process of law hereafter thereupon for the
same happen to be made contrary to this ordinance, that then that
act or acts or other process of law whatsoever they be, stand and be
utterly void; provided always, that no .person or persons shall take
any benefit or advantage by this act, which shall hereafter decline
from his or their said alligeance." Upon this act these things are
observable.
1. That this act was not temporary or for the life of king Henri/
VII. but was perpetual, and extended to all succeeding kings and
queens of this realm, for it is for attendants upon the king or sove-
reign lord of this land for the tirne being.
2. It is observable, that this act extendeth to a king de
[ 273 ] facto, tho not de Jure, for in truth such was Henri/ VII. for
his wife was the right heir to the crown, and his regal
power was principally by an act of parliament made 1 H. 7. before
his intermarriage with his queen, tho both titles were derived to his
descendants, viz. Henry VIII. and in default of issue, to his sister,
from whom our present sovereign is descended : and this act, tho
extended to his successors, which were kings de jure, as well as de
facto, yet was made for the security of himself and his servants in
the first place, which appeareth more fully also by the preamble.
3. That tho this act might secure the attendants on the king in his
wars against impeachments in an ordinary course of law, and might,
as to this purpose, exempt them from the danger of any treason by
the statute of 25 E. 3. as adherers to the king's enemies, yet it was
a vain provision against future acts of parliament, whose hands
could not be bound by a former act from repealing it, or taking away
the effect thereof in part or in all.
It is true, since that time this kingdom hath had no great experi-
ence of changes of this nature, nor need to make use of the advan-
tage of this statute: it is true queen Mary began her reign 6 July,
1553, she was crowned 6 Octob. following, her first session of parlia-
ment began 5 Octob. 1553. which was the day before her coronation,
and the second session thereof was held by prorogation 24 Octob,
1 Mar.
Upon that 6th of July, which was the day of king Edward^s
death, and before queen Mary was actually settled, the lady JanQ
HISTORIA PLACITORUM CORONiE. 273
Gray set up a title for herself, and continued in some kind of regal
power, until the 1st of Jlugust following, and during those twenty-
four days the styles of deeds, statutes and other things (and possibly
also processes) were made in her name, and a special act was made
1 Mar. sess. 2 cap. 4. to make them effectual, and to be pleadable in
the style, name, and year of queen Mary ; so that the lady Jane
seemed an intruder for about twenty-four days; but the truth is, she
was not so much as an usurper, or a queen de facto: and
these her assistants in that business, viz. the archbishop of [ 274 ]
Canterbury, the duke of Northitmberland, the said lady
Jane and divers others were attainted before commissioners of oyer
and terminer ; and those attainders confirmed by parliament I Mar.
sess. 2. cap. 16. and note in that act of attainder a special proviso,
that the possessions of the archbishopriek of Canterbury should not
he forfeited by that attainder or act of parliament; possibly they
thought that the general words of that act, or at least the statutes of
26 H. 8. and 33 H. 8. which gave forfeitures for treason against
successors, and were not repealed by 1 Mar. might otherwise have
forfeited the lands of the archbishopriek by the attainder of the arch-
bisop; but of this supra cap. 23. p. 252.
4. But what was the meaning of the proviso in that act of 11 H.
7. " That no pei-sons shall have the benefit of this act who shall
decline from his alligeance," is dark and dubious.
But these questions never failed to be soon decided on the victor's
part by their parliaments, which were always obsequious enough in
these matters to the victor, and ready to pass acts of attainders for
his safety and their own, against which no security was, nor could
be given by this act of 11 //. 7.
I come now to the reign of Henry VIII. which was a reign
wherein acts concerning treason were exceedingly multiplied, and
they are of three kinds: 1. Such acts, as constituted or declared
treason. 2. Such acts, as concerned the trial of treason. 3, Such
as concerned the punishment or forfeiture of treason.
By the statute of 22 H. 8. cap. 9. Ricfiard Rose for wilful poison-
ing of dingers persons is by authority of parliament attainted of high
treason, and that he be boiled to death: and by authority of parlia-
ment murder by wilful poisoning is made treason for the future, and
the offender to be boiled to death, and not to have benefit of the
clergy: justices of peace to have power to inquire of this offense,
and also of counterfeiting coin of any foreign kingdom, suffered to
be current here, the title of lords to eschete of the lands of offenders
in poisoning is saved to them (A-)
This treason is repealed by 1 Mar. cap. 1. and the same [275]
remains felony as before.
By 26 H. cap. 13. " Maliciously to wish, will, or desire by words
or writing, or by craft to imagine, invent, practise, or attempt any
bodily harm to the king, queen, or their heirs apparent, to deprive
Qi) Co. P. C. p. 48,
275 HISTORIA PLACITORUM CORONiE.
them, ov any of them of their dignity, title, or name, or slanderously,
or riialicionsly to publish by express writing, or words, that the king
our sovereign lord is an heretic, schismatic, tyrant, infidel, or
usurper, or rebelliously to detain any of his castles, &c. in this realm,
or other his dominions, or rebelliously to detain or keep any of liis
ships, ammunition, or artillery, and do not humbly render the said
casiles, fortresses, ships, or artillery, to our sovereign lord, his heirs
or successors, or such as shall be deputed by them, within six days
after they be commanded thereunto by proclamation under the great
seat, is enacted to be treason in the offenders, their aiders, counsellors,
consenters and abetters: foreign treason to be tried in any connty,
where the king shall appoint by commission,"
1. It should seem, that this act was intended to be perpetual, for
in it and the subsequent clause of forfeitures it mentions the king, his
heirs and successors. 2. Part of this seems to be treason by the sta-
tute of 25 E. 3. viz. the practising any bodily harm, if there be an
overt-act, and also the rebellious detaining of the king's castles after
summons by proclamation; the rest are purely new treasons. 3. But
whether it was temporary or perpetual, all treason resting singly, as
enacted by authority of this act, is repealed by 1 E. 6. and 1 Mar.
and yet the latter clause(/) concerning .forfeiture in relation to all
treasons within 25. E. 3. stands unrepealed; de quo vide supra 4'
infra.
By 27 H. 8. cap. 2. counterfeiting privy seal, privy signet, or sign
manual is made treason, and the offenders, their counsellors, aiders,
and abetters to suffer and forfeit, as in case of treason; this is repealed
by 1 Mar. cap. 1. and then re-enacted by 1 Mar. cap. 6.
By 25H. 8. cap. 22. the divorce between the king and queen
[276 3 C'<7//j«r//ie is affirmed by parliament, and also the marriage
between him andr^nne Bullen, and the crown with all dig-
nities, honours, pre-eminences, prerogatives, authorities, and juris-
dictions to the same annext or belonging, is entailed after the king's
death to the heirs of his body lawfully begotten, viz. to the first,
second, and other sons of the king and of the said queen Jlnne, and
to the heirs of their bodies successively; and for want of s«ch issue
male, to the heirs male of the king, and the heirs of their several
bodies; and for want of such issue, to the lady Elizabeth, their
daughter and the heirs of her body, and so to their second, third and
other daughters; and for want of such issue, to the king's right heirs.
" If any by writing, printing, or exterior act maliciously do or
procure any thing to the peril of the king's person, or to the disturb-
ance of the king's enjoyment of the crown, or to the prejudice or
derogation of the marriage between him and queen Anne, or to the
peril, slander, or disherison of any of the issues or heirs made by this
act inheritable to the crown, it shall be high treason.
" If any bywords without writing, <5'C. maliciously publish any
{I) By this laUer clause the offender, S^c. sliall forfeit to the kingf, his heirs and succes-
Bors all hinds, tencnicnts, and iicreditaaicnts of any estate of inheritance in use or pos-
session, by any right, title, or means.
HISTORIA PLACITORUM CORONA. 276
thing to the slander of the said marriage between the king and queen
Anne, or to the slander or disherison of the issues of the king's body
begotten on the said queen Anne, or other heirs inheritable to the
crown, by virtue of this act, it shall be misprision of treason :" an
oath is appointed to be taken in pursuance hereof, and the refusers
are guilty of misprision of treason; provision is made for the custody
of the heir of the crown during minority.
28 H. 8. cap. 7. the last act is repealed, and all intermediate of-
fenses against that act in relation to queen Anne or the lady Eliza-
beth pardoned; <\\\Q%wAnne and others attainted of treason; the mar-
riage between the king and queen Catharine annulled and judged
void, and the issues between them to be illegitimate; the marriage
between the king and queen ./^«;?e judged void by sentence of divorce
of the archbishop; the Same sentence confirmed, and the marriage
with queen Anne judged and declared null and void, and tlie issues
between them declared illegitimate and excluded from inhe-
riting the crown: Levitical degrees settled. Children be- [277]
tween the king and queen Jane shall be adjudged the king's
lawful children, and inheritable to the crown; the crown entailed to
king Henry VIII. and the heirs of his body lawfully begotten, that
is to say, to the first, second,.and other sons of the king on the body
of queen Jane begotten, and the heirs of their bodies severally; and
in default of such issue male, then to the first son and heir male of
his body, and so to the second and other sons in tail; and for the
want thereof, to the first and other issue female between the king and
queen Jane in tail; and for want of such issue, to the king's first and
other issue female in tail; and for lack of issue of the king's body, to
such person, and in such manner as he shall appoint by his last will
or letters patent ; provision against disturbances of the heir of his body
so nominated under pain of treason; "And if any shall by words,
writing, printing, or other exterior act directly or indirectly do or
procure maliciously any thing to the peril of the person of the king,
his heirs or successors having the royal estate of the crown, or ma-
Uciously or willingly by words, c^-c. give occasion, whereby the king,
his heirs or successors might be interrupted of the crown, or for the
interruption, repeal or adnullation of this act, or the king's disposal
of the crown according to it, or to the slander, disturbance, or dero-
gation of the marriage between the king and queen Jane, or any
other lawful wife, which he shall hereafter marry, or to the peril,
slander, or disherison of any of the issues and heirs of the king limited
to be inheritable to the crown, or to whom the king shall by autho-
rity of this act dispose it, or that affirm, c^'C. the marriage between
the king and queen Catharine, or between the king and queen Anne
to be good, or slander the sentences of divorce above said, or publish
their issues to be the king's lawful children, or shall attempt to de-
prive the king, the queen, or any made inheritable to the crown by
this act, or to whom the king by authority of this act shall dispose
thereof, of their titles, styles, names, degrees, or royal estate
or regal power, or refuse to take an oath to answer such [ 278 ~\
questions, as shall be objected to them upon any clause of
278 HISTORIA PLACITORUM CORON.^.
this act, or after taking the oath do contemptuously refuse to answer
such interrogatories, as shall be objected concerning the same, or
shall refuse to take the oath enjoined by this act, they, their aiders,
counsellors, maintainers and abetters shall be guilty of treason, and
forfeit all their lands, S,'C. and all sanctuary excluded."
The form of the oath is set down in the act, and power is given to
the king by will to dispose of the custody of the king's issue within
age.
It is made treason to disturb such disposal, and also power is given
to the king to dispose or give by will, (§'C. to any of his blood any
title, style, name, honors, tenements, or hereditaments.
No/a, This act doubted whether the attempting any thing in par-
liament against the marriage of queen Jinne might not bring them
in danger of the act of 25 H. 8. and therefore took care both to
repeal the act, and to discharge and pardon what had been attempted
against it.
The clause enabling the king to dispose of any honours or lands
to those of his blood by will was necessary, for without such an
enabling act of parliament the king could not dispose thereof by will,
but only by letters patent under the great seal, or for lands parcel
of the duchy o{ Lancaster under the seal of the duchy.
But it seems, that as to the disposal of lands belonging to the
crown or duchy by letters patent under these respective seals, the
king had power without this act, or the 35 H. 8. cap. 1. to dispose
thereof, and to bind his successors.
And this by reason of the special penning of those acts, which, as
I think, did not entail the lands, that the king had in jure coronss
or injure diicatus Lancastrise, but only limits the succession of the
crown and of the dignities, honors, prerogatives, pre-eminences,
authorities, or jurisdictions to the same annext or belonging, which
are but so many expressions of the parts or incidents of the regal
dignity, and not of the lands or possessions of the crown, but those
rested in the crown in fee-simple, as they were before those acts
made.
And hence it is, that in the several acts of 34 H. S. cap.
[279 ] 21. 1 £?. 6. cap. 8. 18 Eliz. cap. 2. 35 Eliz. cap. 3. 43
Eliz. cap. 1. for confirmation of letters patent, there is no'
clause to make them good, notwithstanding the entail of the crown,
for it was not needful; but the lands granted by king Henri/ VIII.
Ediuard VI. queen Mary., queen Elizabeth, stand eflectual without
any such confirmation, and yet the entail of the crown by these acts
continued till the death of queen Elizabeth, at which time it was
spent, and king James succeeded to the crown as the true heir
thereof, without the help of any entail or nomination by Henry VIII.
And yet after all this the whole scheme was altered by the statute
of 35 H. 8. cap. 1. for thereby after recital of the statute of 28 H. 8
and that the king had issue by queen Jane prince Edward, and the
king had since married the lady Catharine ; It is enacted, "That if
the king and prince Edward die without heirs of either of their
HISTORIA PLACITORUM CORONiE. 279
bodies, the crown shall remain to the lady Mary and the heirs of
her body under such conditions, as shall be limited by the king by
his letters patent, or his last will; and for want of such issue, or
upon breach of such conditions, to the lady Elizabeth and the heirs
of her body under such conditions, as shall be limited by the king
by his last will or letters patent; and in default of such issue, or
upon breach of such conditions, to such persons and ibr such estates,
as the king shall limit by his will or letters patent.
This act repeals the former oath of 28 H. 8. and directs the form
of a new oath to be taken for the extirpation of the pope's pretended
supremacy,. and limits it to be taken by all that sue livery, have any
office of the king's gift, receive orders, take degrees, and by all per-
sons whom the king, (§'C. shall appoint, and that it shall be treason in
such, who obstinately refuse to take the oath.
It is also enacted, "That if any person by words, writing, printing,
or exterior act maliciously or willingly do or procure any thing
directly or indirectly for the repeal, annullation or interruption of this
act, or any thing therein contained, or of any thing that shall
be done by the king in the limitation of the crown to be [280]
made as aforesaid, or to the peril, disherison or slander of
any of the issues and heirs of the king being limited by this act to
inherit and to be inheritable to the crown, or to the disherison or in-
terruption of any person, to whom the crown is by this act, or shall
be limited by the king as aforesaid, whereby they may be destroyed
or interrupted in body or title of the inheritance of the crown, the
same shall be high treason in the offenders, their maintainers, aiders,
counsellors, and abetters, saving to all persons, other than the par-
ties attainted, their heirs and successors, all rights, S^c. in the lands of
the persons attaint."
And note, that notwithstanding the caution used in the act of
28 H. 8. for the pardon of the attempting to repeal the act of 25 H. 8.
no such care was thought necessary here for the attempt or procure-
ment to alter the law by act of parliament; for as it could not be
restrained by a precedent act, so neither was it concerned within the
penalty.
And thus much for those treasons, that related to the succession of
the crown, which I have put together, notwithstanding many of them
come after those other acts, which I shall hereafter mention. [1]
[1] Of the statutes of treason passed in the reigfn of Henry 8, Hume says, they were
multiplied beyond all former precedent. Even words to the disparagement of the king,
queen, or royal issue, were subjected to that penalty; and so little care was taken in
framing those rigorous statutes that tiiey contain obvious contradiclions; insomuch that
had they been strictly executed, every man without exception must have fallen under the
penalty of treason. By one statute, for instance, it was declared treason to assert the
validity of the king's marriage, either with Catherine of Arragon, or Anne Bolyn ; by an-
other, it was treason to say any thing to the disparagement or slander of the princesses
Mary and Elizabelh; and to call them spurious, would no doubt have been construed to
their slander. Nor would even a profound silence with regard to these delicate points be
able to save a person from such penalties. For by the former statute, whoever refused to
answer upon oath to any point contained in that act was subjected to the pains of treason.
The king therefore, needed only propose to any one a question with regard to the legality
280 HISTORIA PLACITORUM CORONA.
By the 28 H. 2. cap. 10. which was the great concluding act against
the papal authority, the asserting or maintaining of the papal autho-
rity is brought within the statute of prsemttnire, and he that obsti-
nately refuseth the taking of the oath of abjuration thereby enacted,
is subjected to the penalty of high treason.
By 28 H. 8. cap. IS. marrying any of the king's children or re-
puted children, or his sisters, or aunts of the father's part, or the
children of the king's brethren, or sisters without the king's license
under his great seal, or deflowering of any of them, is enacted to be
treason.
By 31 H. 8. cap. 8, the king and council's proclamation concern-
ing religion or other matters are to be obeyed under such penalties,
as they shall think requisite; they, that disobey them and then go
beyond sea contemptuously to avoid answering such offense,
["281 ] shall be guilty of treason, <§'c. saving to every person, other
than the offenders, their heirs and successors, all right, S,^c.
By 32 H. 8. cap. 25. the marriage between the king and hdy ^/inne
Cleve, which had been dissolved by the sentence of convocation, was
confirmed by parliament, with liberty for each party to marry else-
where: if any by writing, printing, or exterior act, word, or deed,
accept, take, judge, or believe the said marriage to be good, or
attempt any thing for the repeal or adnuUation of this act, it shall be
high treason in them, their aiders, counsellors, abetters, or maintam-
ers, saving the rights of all, other than the oflenders, their heirs and
successors; and all persons that have acted against the said marriage
are pardoned.
By 33 H. 8. cap. 21. Queen Catharine Howard was attainted of
high treason, and all persons that had acted against her were pardon-
ed : any woman, whom the king or his successors shall intend to take
to wife, thinking her a pure and clean maid, if she be not so, and
shall willingly couple herself in marriage to the king notwithstanding,
without discovering it to the king before marriage, shall be guilty of
high treason; and if any other know it and reveal it not, it shall be
misprision of treason: the queen or prince's wife soUiciting any per-
son to have carnal knowledge of her, or any person solliciting the
queen or prince's wife to have carnal knowledge of her, is treason in
them respectively, their counsellors, aiders and abetters.
By 35 //. 8. cap. 3. The king's style (Henricus octaviis Dei gratia
Angliffi, Francia) & Hiberniec rex,Jidei defensor, 4' in terra ecclesias
Anglicaiise & IliberniaB supremum, caput) is united and annexed to
the imperial crown of England; and if any shall imagine to deprive
the king, queen, prince, or the heirs of the king's body, or any to
whom the crown is or shall be limited, of any of their titles, styles,
names, degrees, royal estate, or regal power annext to the crown uf
of cither of his first rnarriagres; if the person was silent, he was a traitor by law; if he an-
swered either in the ncg-alivc or in tlic affirmative, he was no less a traitor. So mon-
strous were the inconsistencies which arose from the furious passions of the king, and the
slavish submission ofliis parliaments. Hisl. Engl. vol. Y.p. G40.
HISTORIA PLACITORUM CORON.^. 281
England, it shall be high treason, saving the right of all other than
the offenders, their heirs and successors.
And thus far concerning the Several treasons enacted in [ 282]
this king's time, all which are nevertheless now abrogated
and repealed by 1 E. 6. and 1 Mar. as shall be shewn.
II. There are several acts of parliament in this king's time, which
concern trials of treason, some of which are in force at this day, and
not repealed by any statute.
By 26 H. 8. cap. 6. The treason concerning counterfeiting, wash-
ing, clipping and minishing of money current within this realm, as
likewise other felonies committed in Wales or the marches thereof,
may be heard and determined before justices of goal-delivery in the
next English county; but note, this extends not to other treasons,
nor, at this day, to clipping or minishing the coin ; for the acts, that
made them treason at that time, viz. 3 H. 5. and 4 H. 7. stand now
repealed, and the statutes of 5 Eliz. cap. 11. for clipping, and
18 E/iz. cap. 1. for minishing the coin, direct it to be tried by the
course and order of the law; and so it is also for counterfeiting of
foreign coin by the statute of 1 Mar. yea, and as to counterfeiting
the coin of this kingdom, or any other offense touching coin, by the
statute of 1 <^' 2 F. €>' M. cap. 11. the indictment and trial is directed
to be according to the course of the common law; so that as to coin
also the statute of 26 H. 8. is now out of doors.
28 H. 8. cap. 15. For trial of treason committed upon the high
sea before the admiral, 8j-c. by commission under the great seal ; this
statute. as to trial of treason upon the sea stands unrepealed by
1 Mar. and whether as to treasons committed in any rivers, or
ports, or creeks within the bodies of counties, it be not repealed by
1 4- 2 P. (§• M. cap. 10. or by the statute of 35 H. 8. cap. 2. for trial
of foreign treasons, is considerable.
By 32 H. 8. cap. 4. Treasons and misprisions of treason committed
in Wales, ox in other places where the king's writ doth not run, shall
be tried before such commissioners of oyer and terminer, as tlie king
shall appoint, as if committed in the same counties into which the
commission is directed.
This is repealed by the statute of 1 4' 2 P. ^- M. cap. 10.
cited to be so adjudged in H. 14 Eliz.{vi) Co. P. C.p. 24. [283]
because it is done within this realm, and so may be tried in
Wales.
33 H. 8. cap. 20. Concerning the proceeding touching the enquiry
and trial of treason committed by persons, that become lunatic after
the treason committed, without putting them to answer, and touch-
ing the execution of persons attainted of treason, and afterwards
becoming lunatic, is repealed by the stattUe of 1 4' 2 P. (5* M. cap.
10. vide Co. P. C.p. 4 4' 6. both as to the indictment and as to the
trial; but the forfeiture of persons attainted of treason, as to old
treasons, stands in force.
(jn) Lord Lumley^s case.
283 HISTORIA PLACITORUM CORONA.
33 H. 8. cap. 23. Treason or misprision of treason or murder com-
mitted by a person examined before three of the council, and found
by them guihy, or suspected, may be enquired of, heard and deter-
mined before commissioners of oyer and terminer in any county of
England to be named by the king, by jurors of the county in such
commission : challenge for lack of forty shillings freehold allowed
peremptory challenge is ousted in treason or misprision of treason:
trial by peers is saved.
This statute as to the indictment and trial of treason in any
foreign county stands repealed by 1 <§• 2 P. Sr M. cap. 10. as was
ruled by all the judges of England'm Som ervil I e's case, M. 26 EUz.
reported by justice Clench n. 17. (n) against the opinion of Stam-
ford, PI. Cor. Lib. II. cap. 26. both as to the indictment and also as
to the trial, for Somerville was indicted in the county where the
offense was, and by a commission in Middlesex was tried by a jury
of the county, where the offense was committed ; but as to murder,
it seems to stand unrepealed, and accordingly put in ure; Cramp-
ton's jUs{[ce.{o)
35 //. 8. cap. 2. Treasons, misprisions and concealments of trea-
sons committed out of the realm shall be heard and determined by
the court of king's bench, and tried by a jury of that county, where
the court sits, or before commissioners and in such shire, where the
king shall appoint by his commission, by good and lawful
[_ 284 2 f^sn of the same shire, as if committed in the same shire:
trial of a nobleman by his peers is saved.
Upon this statute these points have been resolved : 1. That this
act is not repealed by 1 E. 6. or 1 S,' 2 P. S,^ M. cap. 10. thus it was
resolved in Orurk's case, Co. P. C. p. 24. 2. It extends to a trea-
son committed in Ireland, xesoXvadi in Sir John PerroVs case,(/))
Co. P. C.p. 11. 3. It extends to a treason committed in Ireland,
by a peer of Ireland, so resolved in 22 Car. 1. in B. R. in Mac-
guire's case. (9) 4. The commission in this act mentioned may be
signed by the king's sign manual, or the warrant to the chancellor
to issue the commission may be signed by the king's sign manual,
and either of them is warranted by this statute, so resolved H.
36 Eliz. cited Co. Pla. Cor. p. 11. in the case of Patrick Ocullen.
5. If an indictment be taken by virtue of this statute in the county
of Middlesex, and then the bench is remaved by adjournment into
another county, if the prisoner pleads not guilty, it shall be tried by
a jury of that county where the indictment is taken, because the
words are, that it shall be inquired, heard and determined by
good and lawful men of the same county, luhere the said bench
shall sit. M. 35 4' 36 EUz. B. R. in the case of Francis Dacres
cited Co. PI. Cor. p. 34. but otherwise upon an indictment upon the
statute of 5 EUz. cap. 1. for refusing the oath of supremacy. Co. PL
Cor. ibidem. {r)
(n) This is reported 1. And p. 104. {p) State Tr. Vol. I. p. 181.
(0) p. 22. lord Grevil's case. {q) State Tr. Vol. I. p. 928.
(r) Tlic case of Edmund Bonner, Bishop of London.
HISTORIA PLACITORUM CORONA. 284
III. As touching the third point of forfeitures by treason I shall
say little more, than what is said before in the preceding chapter con-
cerning the forfeiture of tenant in tail.
Only it seems, that the law was taken upon the statutes of 33 and
36 H. 8. before mentioned, that if an abbot or a bishop were attaint-
ed of treason, that by force of the general words o{ forfeiting all
their lands, tenements and hereditaments they forfeit the lands of
their church, tho they had them in autre droit.
1. Because in the savings of these statutes, yea and in all the new
statutes of treason made in the time of Henry VIII. above-
mentioned, the saving ywns, saving to all persons other than [ 285 ]
the offenders, their heirs and successors such right, ^-c. and
the exception of successors makes it probable, that they intended,
when a sole corporation was attainted of treason, he should forfeit
the lands of his church.
2. Because in the act of attainder of the archbishop of Canter-
bury, 1 Mar. cap. 16. there is a special proviso, that it should not
extend to the lands which he had in right of his archbishoprick ; but
that these should be saved, as if he had not been attainted.
3. Because by the act of 31 i^. 8. cap. 13. it appears plainly, that
the possessions of Monasteries, where the abbots were attainted of
treason, came thereby to the crown, tho they are not annexed to the
court of augmentations of the king's revenues.
4. It is clearly admitted by the judges in the case of the Bishop of
Durham, By. 289. that by force of the statute of 26 H. 8. the lands
of abbeys, &c. came to the crown by the attainder of treason of the
abbots, &c. and possibly it was in design at the time of the making
of that statute.
But it is true, that before that statute of 26 H. 8. 1. The lands,
which a person had in right of his church, were not forfeited by
attainder of treason. 2. That altho the lands of a sole corporation
such as were an abbot, prior, bishop, might be forfeited by attainder
by the special penning of 26 and 33 H. S. yet the lands of an aggre-
gate corporation, as dean and chapter, mayor and commonalty, were
not forfeited by the treason of the dean, or mayor, by virtue of those
statutes, for the right of the land was in the commonalty and chap-
ter, as well as in the dean or mayor, and not in them alone. 3. That
at this day the attainder of treason doth not forfeit the lands of a
bishop, parson or other sole ecclesiastical corporation: 1. Because
the statutes of 1 Eliz.{s) and 13 Eliz. cap. \0.{t) disabling bishops,
masters of hospitals, &c. to alien their possessions, disable them to
forfeit as well as alien, or otherwise the statute would be illu-
sory. 2. By the special penning of the statutes of E. 6.
cap. 12. and 1 Mar. whereby it is enacted, that no penal- [ 286 ]
ties shall be inflicted for treason, other than such as be by
25 E. 3.
(s) This is not among the printed statutes.
(t) Ttiis statute made perpetual by 3 Cur. 1. cap. 4.
VOL. I. 30
286 HISTORIA PLACITORUM CORON.E.
Concerning the forfeiture of lands in a county palatine by the
attainder of treason out of a county palatine, or e converso.
By the statutes of 9 H. 5. cap. 2. 18 ff. 6. cap. 13. 20 H. 6. cap. 2.
31 H. 6. cap. 6. outlawries of treason, &c. in the county palatine of
Lancaster were not to cause a disability of the person outlawed, nor
induce any forfeiture of the lands or goods of the party outlawed
lying out of that county ; but by the statute of 33 H. 6. cap. 2. these
acts are repealed, and it is ordained, that the indicters in a county
palatine (where the indictment supposes any person to be inhabiting
out of the county of Lancaster within some other county of the
realm) have lands to the yearly value of five pounds in that county,
and that upon indictment to be taken out of the county palatine of
persons residing there, the indicters shall have a yearly freehold of
five pounds, and that no process be made out upon any such indict-
ments, till it has been examined by the king's justices, whether the
indicters be so qualified.
J3ut now by the statute of 27 H. 8. cap. 24. all powers in county
palatines for making of justices in eyre, of assise, of peace, of goal-
delivery, are resumed, and such commissions are to pass under the
great seal of England, only in Lancaster they are to be under the
usual seal of Lancaster : all processes to be in the king's name under
the teste of him, that hath the county palatine; all indictments, ^"c.
are to conclude contra pacem regis, and all fines and amerciaments
upon officers are resumed: so that now all process of outlawry,
attainder, <5'c. in county palatines are of the same efl'ect and induce
the san^ie forfeitures, as if the offenses were committed, tried and
determined in any other county of England.
Bnt this alters not the title of the bishop o( Durham or any other,
that had royal forfeitures of treasons of lands within their liberty,*
or county palatine, for that is a distinct franchise, and not at all
touched by the act of resumption, as appears by the case in Dijer{u)
before cited, and by what is said in the precedent chapter
[| 287 ] touching forfeitures by treason: and thus far for acts touch-
ing treason in the time of Henry VIII.
As touching treasons in the verge 1 shall particularly mention the
same hereafter.
1 come now to the time of king Edward VI.
1 E. 6. cap. 12. There are these several changes made by these
several clauses.
1. It is enacted, that no act, deed or ofl'ense being by statute made
treason or [)etit treason bywords, writing, cyphering, deeds or other-
wise whatsoever, shall be deemed or adjudged high treason or petit
treasons but only such as be treasons or petit treasons in or by the
statute of 25 E. 3. for declaring treasOa, and such ofiences, as here-
after by this act are expressed and declared to be treason or petit
treason ; and no other penalties to be inflicted upon the offenders in
treason or petit treason, but what are ordained by that, or this
statute.
(m) Dyer 289.
HISTORIA PLACITORUM CORONA. 287
2cl clause repeals the statutes concerning heretics, Lollards, tjie
six articles, selling of books of the scriptures, ^-c. ordained in the
time of R. 2. H. 5 and H. 8.
3d clause repeals all felonies made by act of parliament, since 23
Jlpril 1 H. 8. that were not felonies before, and all penalties touch-
ing the same.
4th clause repeals the act of 31 H. 8. touching obedience to the
king's proclamations, and the statute of 34 H. 8. imposing penalties
upon the disobedient.
5th clause enacts certain new offenses, viz. "If any shall by
preaching, express words or sayings athrm and set forth that the
king, his heirs or successors, kings of this realm, is not or ought not
to be supreme head on earth of the church of England 2ind Ireland
immediately under God, or that the bisliop of Rome, or any besides
the king for the time being, ought by the laws of God to be supreme
head of the same churches, or that the king, his heirs or successors,
kings of this realm, ought not to be king of England, France, and
Ireland, ox any of them, or do compass by open preaching, express
words or sayings to depose or deprive the king, his heirs or suc-
cessors kings of this realm, from his royal estate or titles to
the same kingdoms, or do openly publish, or say by express [^ 288 ]
words or sayings, that any person, other than the king, his
heirs or successors kings of this realm, of right ought to be king of
the realms aforesaid, or any of them, or to have or enjoy the same
or any of them, the offenders, their counsellors, aiders, abettors, pro-
curers and comforters, for the first offense shall lose his goods, and
suffer imprisonment during the king's pleasure; and if after such
conviction he shall commit the same offense again, other than such
as be expressed in the statute of 25 E. 3. he shall forfeit to the king
the profits of his lands, benefices, and ecclesiastical promotions during
his life, and all his goods, and suffer perpetual imprisonment; and
for the third offense after a second conviction, he shall be guilty of
treason, and suffer and forfeit as a traitor.
6th clause enacts that, " If any person shall by writing, printing,
overt-act or deed, affirm or set forth, that the king of this realm for
the time being, is not or ought not to be supreme head on earth of
the churches of England and Ireland, or any of them immediately
under God, or that the bishop oi Rome or any person, than the king
of England for the time being, is or ought to be supreme head on
earth of the same churches or any of them, or do compass or ima-
gine by writing, printing, overt-deed or act to depose or deprive the
king, his heirs or successors from the royal estate or titles of king of
England, France and Ireland, or any of them, or by writing,
printing, overt-act or deed, do affirm, that any person, other than the
king, his heirs and successors, of right ought to be king of the realms
of England, France and Ireland, or any of them, then every such
offender shall be guilty of treason, and suffer and forfeit, as in case
of high treason.
7th clause enacts, "That this act shall not extend to repeal any
288 HISTORIA PLACITORUM CORONA.
statutes touching the counterfeiting, clipping, filing or washing the
coin current of this kingdom, or importing counterfeit coin, or coun-
terfeiting the king's sign manual, privy seal, or privy signet, their
abettors, &c.
8th clause enacts, "That if the persons declared by the act of 35
H. 8. to be inheritable to the crown do usurp one upon the
[289 ] other, or interrupt the king's possession of the crown, they,
their abettors, &c. shall be traitors.
9th clause takes away clergy from persons found guilty by verdict,
confession, or not directly answering or standing mute in cases of
murder of malice prepense, of wilful poisoning, house-breaking, any
person being in the house and put in fear, robbing in or near the
highway, horse-stealing, sacrilege ; but in all other cases of felony
clergy allowed, and sanctuary the same as before the 24 April
1 ^.8.
10th clause provides, that all the statutes of H. 8. concerning chal-
lenge, or concerning trial of foreign pleas, shall stand in force.
1 Ith clause declares, that no person already arrested or imprisoned,
indicted or convicted, or outlawed for treason, petty treason or mis-
prision of treason, shall have any advantage of this act.
12th clause provides, that wilful killing by poison shall be deemed
wilful murder, and the offenders, their aiders, abettors, counsellors or
procurers shall suffer, as murderers.
13th clause enacts, that a lord of parliament in all cases within the
benefit of clergy, tho he cannot read, yet shall be delivered as a clerk
convict without burning in the hand, or loss of lands, &c.
14th clause saves the trial by peers for any offenses within this
statute.
15th clause enacts, that clergy be allowed, notwithstanding the
offender have been married to a single woman or widow, or to two
wives or more.
16th clause enacts, that notwithstanding attainder of treason, petit
treason, misprision of treason, murder or felony, the wife shall have
her dower, and saves to all and every person, other than to the
offender attained, convict or outlawed, all such right, title, interest,
entry, leases, possession, condition, "profit, commodity, and heredita-
ments, as they had before or at the time of the attainder, conviction,
or outlawry.
17th clause provides, that the statute of 27 H. 8. for felony in ser-
vants stealing the goods of their masters, shall stand in force.
IStli clause provides, that no person be put to answer for
[ 290 ~\ any of the offenses abovesaid concerning treason by preach-
ing or words only, unless accused before one of the king's
council, justice of assise or peace, &c. within thirty days after the
offense committed.
19ih clause, concealing and keeping secret any high treason shall
be misprision of treason, and the offender shall forfeit as iieretofore
hath been used in case of misprision of treason.
HISTORIA PLACITORUM CORONiE. 090
20th clause, calling, writing or printing the French king king of
France shall not be adjudged any oftense within this act.
21st clause provides, that no person shall be indicted, arraigned,
condemned or convicted for any offense of treason, petit treason,
misprision of treason, or for any words before mentioned, whereby
he shall sulfer pains of death, loss of goods, imprisonment, &c. unless
the otTender be accused by two sufficient and lawful witnesses, or
shall willingly without violence confess the same.
I have mentioned the clauses of this statute at large, and by their
numbers, because there be many things observable thereupon.
By the first clause of this statute all those numerous treasons and
petit treasons, that were enacted or declared at any time since 25
E. 3. are wholly taken away, except that of counterfeiting, clipping,
washing, or filing of coin, &c. excepted in the 7th clause ; but this
doth not mention misprisions of treason, but only declares what mis-
prision of treason is, for by taking away the treasons themselves, the
misprisions of those treasons must needs cease, as a crime.
But this act did not extend to alter the trials in case of treason,
and therefore notwithstanding this act the statute of 28 H. 8. cap. 15.
for treasons at sea, 26 H. 8. cup. 6, for counterfeiting, &c. in Wales.
32 H. S. cap. 4. for treasons in Wales, 33 H. 8. cap. 23. for treasons
to be tried out of their county, 35 H. 8. cap. 2. for trial of foreign
treasons, stood yet in their force, until the statute of 1 <§• 2 P. <§• M.
cap. 10. .
Again, notwithstanding that by some former statutes certain of-
fences, which were felony before, as wilful burning of houses
and poisoning, were made treason, yet the repeal of those [ 291 l
acts that made them treason leaves them nevertheless in the
state, wherein they before were, namely felony.
Again, upon consideration and comparison of the 5lh and 6th
clauses these things are observable, namely, 1. The wisdom of the
law-makers, that put the very same offenses in words spoken in a
lower rank of punishment than the same things written or printed,
making the former but a misdemeanor in the first offense, which in
printing or writing was treason in the first offense. 2. it is observable
upon that fifth clause, that there were some things within the fifth
clause, that might be treason or an overt-act of treason within the
statute of 25 E. 3. {other than such as be expressed in the statute of
25 E. 3.) vide quse supra dicta sunt cap. 13. touching the treason
in compassing the king's death.
It is also observable upon the 11th clause, that when an offense is
made treason or felony by an act of parliament, and then those acts
are repealed, the offenses committed before such repeal, and the pro-
ceedings thereupon are discharged by such repeal, and cannot be pro-
ceeded upon after such repeal, unless a special clause in the act of
repeal be made enabling such proceeding after the repeal, for offenses
committed before the repeal, as there is in this case.
3 «§• 4 Ed. 6. cup. 5. Tho it primarily concerns riots, yet conse-
quently it concerns treason also : tiiereby it is enacted,
291 HISTORIA PLACITORUM CORONA.
1. " That if any persons to the number of twelve or more assem-
bled together shall intend, go about, practise or put in ure with force
of arms unlawfully, and of their own authority to kill, take or im-
prison any of the king's privy council, or unlawfully to alter or
change any laws established by parliament for religion, or any other
laws or statutes of this realm, and being commanded by the sheriff,
justice of peace, mayor, t^-c. by proclamation in the king's name to
repair to their houses, if they shall continue together by the space of
one, whole hour after such proclamation, or after that shall willingly
in forcible and riotous manner attempt to do or put in ure any of the
things aforesaid ; this shall be adjudged treason in all the
[ 292 2 offenders, their aiders, abetters and procurers." See before
in chapter XIV. concerning levying of war, liow much of
this high treason is within the statute of 25 E. 3.
2. " That if any persons to the number of twelve or more shall
intend, go about, practise or put in ure in manner aforesaid to over-
throw, cut, break or dig up pales, hedges, ditches or other inclosure
of any park, inclosed grounds, banks of pools or fish-ponds, conduits,
conduit-heads, or pipes to the same, which may remain open, or un-
lawfully to have common or way in the said park or grounds, or to
destroy the deer, warrens of conies, dove-houses, fish, or to pull down
houses, mills, bays or barns, or to burn stacks of corn or grain, or to
diminish the rents or yearly values of any manors, lands, S,'C. or the
price of any victuals, corn or grain, or any other thing usual for the
sustenance of man, and being required, as before, shall not depart,
but continue an whole hour, or shall after that forcibly attempt to do
or put in ure the things aforesaid they shall be adjudged felons with-
out benefit of clergy."
T'lde supra cap. 14. which of these offenses were a levying of war
against the king.
3. " That if any person unlawfully and without authority by ring-
ing of bells, sounding of drums, trumpet, horn, or other instrument,
by firii]g of beacons, by malicious uttering of words, casting of bills
or writings, or by any act whatsoever raise or cause to be assembled
any persons to the number of twelve, or above, to the intent that they
shall do any of the acts aforesaid, who shall not dissolve their assem-
bly upon such proclamation within an hour, or shall con'imit any of
the said acts, then they, that raise such assemblies, shall suffer as
felons."
4. " If such assemblies to the number of forty, and above, shall
continue together two hours, or shall bring weapons, meat, (§'C. to the
persons so assembled, it shall be high treason.
5. If above the nimibor of two and under twelve attempt such
things, Ǥ'C. as abovesaid, they are to suffer imprisonment for a year,
and make fine and ransom, with treble damages to persons damni-
fied.
6. In the cases of treason within this act tenant in tail is
[ 293 3 to forfeit to the king during life only, and tenant in fee simple
to forfeit only as upon attainder of felony.
HISTORIA PLACITORUM CORONA. 293
7. Power is given to the sheriffs, justices, mayor, ^-c. to raise
power, and array them in manner of war against the rioters, to the
intent to apprehend the rioters; and if the said rioters do not depart
upon proclamation hut continue together, it shall be lawful for the
sheriff, 4'C. after such commands to kill the rioters; if after such
commandment if fortune any of the riotors be killed upon such ac-
count, the sheriff, S,'C. or any assembled by him shall thereof be dis-
charged: then follows the punishment of those, who refuse to assist
the sheriff, or justice in the repression of riots.
Movers to such riots are guilty of felony without clergy, and per-
sons solicited thereunto not revealing it to suffer three months im-
prisonment.
This act being made in a great measure for the support of the re-
formed religion under Edward VI. was as to all points of treason
therein contained, repealed by 1 Mcir. cap. 1. but in eflect the very
same offenses were enacted felonies within clergy by 1 Alar. sess. 2.
cap. 12. which was to continue to the end of the next parliament,
and after the death of queen Mary was re-enacted by 1 Eliz. cap.
16. to continue during her life, and till the end of the next session
after her death, but then expired.
That which I would observe upon this act is this, how careful
they were in this time not to be over-hasty in introducing construc-
tive treasons, and to shew how the opinions of the parliaments of
Edward VI. queen Mary, queen Elizabeth went, as to the point of
constructive treason, and how careful they were not to go far in ex-
tending the statute of 25 E. 3. beyond the letter thereof
As to the point of indenmifying those, that killed the rioters in
assistance of the sheriff, it is true, that the killing of rioters barely
for continuing together after proclamation required a new law to
indemnify it, as in the statute is provided; but if rioters resist the
sherifi' in his endeavour to apprehend them, or make head against
him, or continue to put in ure their riotous acting, as pull-
ing down houses, inclosures, d^'C. if the sheriff, or those that [ 294 '\
come in aid of him, kill any of them, the law and the statute
of 2 H. 5. cap. 8. do indemnify them, as shall be hereafter more fully
declared.
By 5 «§• 6 ^. 6. cap.W. "If any person by open preaching, ex-
press words or sayings do expressly, directly and advisedly set forth
and affirm, that the king, that now is, is an heretic, schismatic,
tyrant, infidel, or usurper of the crown, or that any his heirs or suc-
cessors, to whom the crown is to come by the statute of 35 H. S.
being in lawful possession of the crown, is an heretic, schismatic,
tyrant, infidel, or usurper of the crown then such person, his aiders,
abettors, procurers, counsellors, and comforters knowing the same,
shall for the first offense lose their goods and be imprisoned at the
king's will, for the second offense, after conviction for the first, lose
the profits of their lands and ecclesiastical benefices during their
lives, and be perpetually imprisoned, and for the third offense, after
294 HISTORIA PLACITORUM CORONA.
the second conviction, be adjudged traitors, and lose tlieir lives, and
forfeit as in case of high treason.
" If any person shall by writing, printing, painting, carving, or
graving, directly, expressly and advisedly publish, set forth and
affirm, that the king, or any his heirs or successors, 4'c. is an heretic,
schismatic, tyrant, infidel, or usurper, it shall be high treason, and he
shall forfeit as in case of high treason.
" If any person or persons rebelliously detain the king's castles,
or fortresses, ships, ordinance, artillery or fortifications, and do not
render them up to the king, his heirs or successors within six days
after proclamation under the great seal, it shall be treason, and the
offender, his aiders, 4'C. knowing of the said offenses shall suffer and
forfeit as in case of high treason.
" If any the king's subjects commit treason contrary to this act or
any other act in force out of the realm, it shall be inquired and pre-
sented by twelve men of any county, which the king by commis-
sion shall assign, as if committed within the realm, and the like
process thereupon, as if done within the realm, and the
[^295] outlawry against an offender inhabiting out of the realm
shall be as effectual as if he had been resident within the
realm.
" But if he render himself upon the outlawry within a year, he
shall be received to traverse the indictment. (a*)
" Persons attainted of any treason shall forfeit to the king all their
lands of any estate of inheritance in their own right at the time of the
treason committed, or at any time after.
" No proceeding shall be on any the offenses aforesaid committed
only by preaching or words, unless the offender be accused thereof
within three months before one of the king's council, justice of as-
sise, justice of peace being of the quorum, or two justices of peace
in the shire where the offense is committed : concealment of any high
treason, shall be adjudged only misprision of treason, and the offender
to forfeit as in misprision of treason.
"Provided that no person shall be indicted, arraigned, condemned,
convicted or attainted for any of the treasons or offenses aforesaid,
or for any other treasons, that now be, or hereafter shall be, which
shall be hereafter perpetrated, committed, or done, unless the same
offender or offenders be therefore accused by two lawful accusers,
which said accusers at the time of the arraignment of the party ac-
cused, if they be living, shall be brought in person before the party
so accused, and avow and maintain that which they have to say
against the said party to prove him guilty of the treasons or offenses
(x) This clause remains, as our author observes below, unrepealed to tliis day, so that
it was great injustice to deny tlie benefit of a trial witliin the year to Sir Thomas Arm-
stronir, who was out-lawed, while he was beyond sea, 36 Car. 2. and of this opinion
was tlie house of commons by their vole Nov. 1!), l()8!i, when it was resolved, that Sir
T/wmas Armstrimfi'' s pica ought to have been admitted according- to the statute of 5 t^ 6
E. G. see Slate Tr. Vol. III. //. 8!)G. and accordingly the like plea was allowed io.John-
soy, who was indicted for counterfeiting the coin, Mich. 2 Geo. 2, B. R. altho he had broke
prison, and was retaken in England.
HISTORIA PLACITORUM CORONA. 295
contained in ihe bill of indictment laid against the party arraigned,
unless the party arraigned shall willingly without violence confess
the same: a saving of the right of all, other than the offenders and
their heirs, or such as claim to their or any of their use: the wife of
the party attainted of these or any other treasons shall be
barred of dower of the lands of the party attainted, so long [ 296 ]
as the attainder stand in force. "[2]
Upon this statute many things are observable. 1. That it should
seem, that neither the writing of these scandalous words, nor the
bare detaining of the king's forts or ships were treason within the
statute of.25 E. 3. for if they had been such, this act would not have
been made. [3] 2. The second thing observable is the great discrimi-
nation, which in this act is made between words and writing, the
latter being made treason, the former only misdemeanor in the two
first offenses, altho the words be the same in both. 3. That so much
of this act, as is introductive of new treason, is repealed by the statute
of 1 Mar. cap. 1. but whether those two penalties previous to trea-
son in case of words, viz. for the first and second offense, be repealed
by any statute, seems doubtful, for those are not treason, 4. But
those clauses in this statute, that concern trial of foreign treasons,
concerning outlawry of persons beyond the sea, forfeiture of lands of
inheritance of the party attainted,, loss of dower by the wife of the
party attainted, stand unrepealed to this day; and so it is held by
many, that the clause concerning two accusers stands still on foot;
de quo vide postea.
Touching the clause for the forfeiture of the lands of the party at-
tainted there are these things considerable,
1. That by this clause tenant in tail of the gift of the king doth by
his attainder forfeit his estate-tail, notwithstanding the statute of
34 H. 8. cap. 20. for as that statute coming after 26 S,- 33 H. S. did,
as to that case, repeal so much of those acts; so this statute of 5 <§' 6
E. 6. coining after 34 H. 8, doth repeal that statute, as to the case of
attainder of treason of such donee in tail,
2, That this act varies much from the penning of the acts of
26 and 33 H. 8. for they seemed, as hath been observed, to fasten
upon lands in right of a corporation sole, as bishop, abbot, 4'C. but
this limits it only to lands in their own right, which possibly, tho
an affirmative clause, may correct the extent of the statutes of
26 and 33 H. 8. and bind up the forfeiture to lands only in their own
right.
As to the point concerning the two lawful accusers these
things will be considerable, 1, Whether it extends in law to [ 297 3
new treasons made after this act. 2. Whether by any statute
[2] " I do not find upon looking- over the State Trials that in crown prosecutions any
great regard was paid to the acts of Edw. 6. for near a century after they were passed ;
or indeed to the common well known rules of legfal evidence. This every man who will
do so much penance as to read over Ihc State Trials during the reigns of queen Eliz. and
king James, will find to have been the doctrine and practice of the limes." Fosl. 234.
[3J See ante, p. 146,
297 HISTORIA PLACITORUM CORONiE.
this be repealed. 3. Admitting it be not, what shall be said two law-
ful ascusers. 4. What a confession.
I. The statute of 5 S,- 6 E. 6. above-mentioned appoints two law-
ful accusers in case of all treason enacted or to be enacted; therefore
if a new treason were made by a subsequent act of parhament with-
out any clause that directs the indictment or trial in any other man-
ner than is appointed by 5 <5' 6 E. by the words of this act there
must be two lawful accusers, both upon the trial and indictment.
But there iiave been great opinions, that tho the words of 5 <5' 6
E. 6. extends to treasons that shall be hereafter enacted, yet this
clause doth not extend in law to such new treasons, unless special
provision be made for the same in the act making such new treason:
others have been of a contrary opinion, because it only concerns the
manner of proceeding, which may be directed by a precedent act, as
upon the statute of IS Eliz. cap. 5. 21 Jac. cap. 4.
II. But certainly, if there be, by a subsequent statute, any deroga-
tory clause from this statute, then there need not be two lawful ac-
cusers.
Therefore upon the statutes of 1 <§• 2 P. <§• M. cap. 11. in treason
for counterfeiting the coin current here, or for clipping and impairing
of coin (which was then conceived a treason not repealed by 1 Mar.
cap. 1.) the evidence and course of proceeding at common law both
upon the indictment and trial are restored, and so no necessity of two
witnesses; this is agreed on all hands. Co. PL Cur. p. 25.
Again, tho the treason for clipping or wasliing of coin declared by
3 H. 5. cap. 6. were repealed by the statute of 1 Mar. cap. I. as is
declared by the preamble of the statutes of 5 Eliz. cap. II. and 18
E/iz. cap. 1. and that the same is newly made treason by the statutes
of 5 and 18 Eliz. and consequently, were there no more in the case,
two witnesses might be requisite by the words of the act of 5 S^ 6
Ed. 6. because those are newly made treasons, yet by the pennmg
of those statutes of 5 and IS Eliz. it is not necessary,, be-
[] 298 ] cause the words in both statutes are being' lawfully con-
victed or attainted according to the order and course of
the law, which takes in the whole proceeding, as well indictment as
trial; for the course of law therein mentioned seems to be intended
the common law, and at common law there was no necessity of two
witnesses in any case of treason.
And altho the statute of I 4- 2 P. S,-' M. cap. 11. did take clipping
and washing to be continuing treasons, and therein might mistake,
yet there being an express clause in that statute, that in those cases
the evidences at common law should be restored; this direction might
take off the statutes of 1 <^' 5 E. G. as to the two witnesses in those
cases, and so have an influence upon the statutes of 5 <^' 18 Eliz. or
at least may go far in expounding them to restore the evidence
required at common law in those cases.
But wliether, as to all other treasons, the general clause in the
statute of 1 <S- 2 P. S^- M. cap. 10. that all trials hereafter to be
awarded or ■made for any treason shall be had and used only
HISTORIA PLACITORUM CORONA. 298
accordins^ to the due order and course of the common laics of this
realm and not otherwise, have taken away the necessity of two
witnesses upon the indictment, hath been controverted, (^) for on all
hands it is agreed, that it takes away the necessity of two witnesses
upon the trial, if there were no more in the case.
My lord Coke in Pla. Cor. p. 25, 26. delivers his opinion, that two
witnesses are necessary upon the indictment in case of all treasons,
other than those, that are for counterfeiting, clipping, or impairing
the coin, and gives many weighty reasons for it, and cites a resolu-
tion in 14 Eliz. lord Lumley's case, and 4 Mar. Bro. Corone, 219.
for according to him the indictment is a distinct thing from the trial ;
therefore the statute of 1 (§' 2 P. d^* M. cap. 10. extending only to
the trial doth not take away the necessity of two witnesses upon
the indictment,[3] and accordingly the general opinion hath run thus
since. (r)
But yet much is to be alledged, that the statute of 1 «5' 2
P. 4' M. cap. 10. extends as well to reduce the indictment, [ 299 ]
as the trial, to the course of the common law.
1. Because it seems to be the intent of the statute to involve the
indictment under the general appellation of the trial, according to 2
<§• 3 P. (§• M. By. 132. a. and tho it is true, that 1 P. (^- M. T)y. 99,
100. in Thomas's case there were two accusers required, yet that
was before the statute of 1 c^- 2 P. 4« M. cap. 10,
2. Because this statute of 1 4' 2 P. (§• M. cap. 10. in other cases
extends as well to the indictment, as the trial; it is agreed, that the
statute of 33 H. 8. cap. 23. concerning trial of treason in a foreign
county, is wholly repealed by 1 4- 2 P. (§• M. cap. 10. quod vide Co.
P. C. p. 27. Dy. 132. whereas, if it should only refer to the^rial,
the indictment might still be in a foreign county, and so he might be
indicted in a foreign county, and yet must be tried in the proper
county: vide accordingly resolved H. 12 Eliz. Dy. 286. h. touching
the rebels in the North, vvhere Stamford'^s opinion, Lib. III. cap.
26.{a) is denied by all the judges of both benches; again, the statute
of 33 //, 8. cap. 20. touching the indictment and trial of lunatics in
anj^ county the king shall appoint, is repealed by this act of 1 <^' 2 P.
£)' M. cap. 10. as well to the indictment as the trial: vide Jlnders.
Rep. n. 154. Jlr den's case. (6)
3. The indictment is in common speech a part of the trial, or at
least a necessary incident to it; and it should be necessary to have
two witnesses to the indictment, it would consequently be necessary
(y) See iiTeZ. 9, 18, 40.
(«) 8tate Tr. Vol. ill. p. 56. the case of lord CastJemoin, Ibid. p. 415. earl of Shafts-
bury's case; p. 645. lord RusseVs case, p. 733. colonel Sidney's case.
{a) S. P. C. p. 90. (6) 1 And. 105.
[3] This distinction is entirely without foundation even upon the foot of those statutes
(the acts of Edw. 6. j( P. Sf M.) But the present act, (7 Will. 3. c. 3. s. 2.) hath not
lett room for that distinction. For it enacteth that, " No person shall be indicted, S^c.
but upon the oaths of two lawful witnesses," ^c. Post. 23:2. 1 East, P. C. 128.
299 HISTORIA PLACITORUM CORONA.
to have them upon the trial also; for by the statute of 5 Sr 6. E. 6.
cap. 11. the two witnesses, that are upon the indictment, must avow
their testimony in the presence of the party upon his arraignment:
and it seems incongruous, that a greater evidence should be required
to the indictment, which is only an accusation, than to the trial, (c)
where the party is to be convicted; therefore, if the statute of 1 4* 2
/-*. <^\ M. intended to take it away upon the trial, it cannot
[ 300 ] be supposed to continue the necessity of two witnesses upon
the indictment.
4. There is also a great authority for this opinion: vide the resolu-
tion and reason of the judges in Jlrdeix's case, Jinders. Rep. n.
154. (fl(), where they resolved, that they could not be indicted in a
foreign country upon the statute of 33 H. 8. 23. because the statute
1 (5' 2 P. 4' M. cap. 10, restoreth the common law as well in relation
to the indictment as the trial, and the trial includes the indictment;
and this was by all the justices and barons so resolved, which case
is also reported by justice Clench, n. 17. to be 19 Novem. 26 Eliz.
Again ibidem n. 28. " Fuit tenus per les justices, que ou le statute
de E. 6. est, que inditement de treson sera per 2 testes, & le statute de
reine Mary est, que tresons sey try solonc le common ley, que ore
inditements sey solonc le common ley; car inditement est parcel de
tryal, car nul tryal poet estre sans inditement, and sic fuit in So7ner-
ville''s & Jirden''s case.
5. It hath been the care of the parliaments since in their acts to
make provision for two witnesses in cases of treasons newly made,
vide statutes 13 Eliz. cap. 1. 13 Car. 2. cap. 1. so that it was thought,
that the statute of 5 4* 6 E. 6. was not of force as to the two witness-
es, at least as to treasons newly enacted, otherwise in cases of new
treasons they needed not these provisions.(e)[4j
(c) Lord Coke P. C.p. 25. says the greatest proof is most of all necessary at the time
of the indictment, because that is the foundation of all the rest, and is commonly found
in the absence of the party accused.
(d) 1 And. 107.
(e) If it were only questionable, that was reason sufficient for making such provision
Vide supra, p. 261.
[4] At common law, one witness was sufficient in case of treason as well as on any
other capital charge. The two witnesses were first required by the 1 Edw.6. c. 12. and
the 5^6 Edw. 6. c. 11. The act of 1 <^ 2 P. Sf M. c. 11. excepts persons accused of
treasons relating to the coin. The 7 Will. 3. only extends to treasons working corrup-
tion of blood, and expressly excludes tlie counterfeiting the coin, seals, &.c. ; only one
witness is required in the trial of these offences. 1 Leuch, C. C. 42. The same provision
is contained in the 8 Sf ^ Will. 3. c. 26. s. 7. and 6 Geo. 3. c. 53. s. 3. By the 39 Sf 40
Geo. 3. c. 93. and 5 tSf 6 Vict. c. 51. where the overt act alleged is an attempt upon the
king's life, the party shall be tried as ifi case of murder. The stat. 7 Will. 3. docs not
require that each overt act shall be proved by two witnesses, but only that the treason
shall be so proved. It cxjjressly declares tliat there shall be either two witnesses to the
same overt act, or one witness to one and anotlicr witness to another overt-act of the
same species of treason. Fast. 235. 1 East, P. C. 129. But if several overt acts be
proved by different witnesses singly, such overt acts must relate to the same kind of
treason, otherwise it is insufficient by the express provision of the statute, which in this
respect is only dochirntory of vvhiit was the known rule of law betbre. id. 130. See case
of the Regicides, Kel. 9. Lord UtaJJ'ord's case, 3 St. Tr. 204. Sir T. Kaym. 407. The
HISTORIA PLACITORUM CORONA. 300
And thus the reasons stand on both sides, and the these seem to
be stronger, than the former, yet in a case of this moment it is safest
to'hold that in practice, which hath least doubt and danger; quod
duhitas, nefcceris, especially in cases of life;(y) but upon misprision
of treason two witnesses are requisite both upon the indictment and
trial. Co. Pla. Cor. p. 24.
III. The third thing considerable in this clause is, what
shall be said two lawful accusers within tliis statute, if it be [ 301 ]
of force.
As to the accusers mentioned in the statute of 5 <^' 6 E. 6. cap. 11.
they are no other than the two lawful and sufficient witnesses men-
tioned in the statute of 1 E. 6. cap. 12. in fine; this is agreed by my
lord Coke, PL Cor. p. 25.
Now what are lawful witnesses in this casei is considerable; the
lawfulness of witnesses must respect either, 1. The persons, or else,
2. The testimony of the witnesses.
1. As in relation to the persons of witnesses, those are said law-
ful witnesses, which by the laws of England are allowed to be wit-
nesses.
A feme covert is not a lawful witness against her husband (o-) in
(/) However since our author wrote this matter is in great measure settled by 7 W. 3.
cap. 3. whereby it is enacted, "That in all cases of high treason, whereby any corruption
of blood, ^c. no person shall be indicted, tried or attainted, but upon the oaths ot two
lawful witnesses to the same treason ; but out of this act are excepted all proceedings in
parliament, or proceedings for counterfeiting the king's coin, great seal, privy seal, or
signet or sign manual.
{g) Co. Lit. 6. h.
necessity of two witnesses to prove the treason extends as well to the finding of the bill
of indictment by the grand jury as to the trial itself in open court, by the very words of
all the acts, " that no person shall be indicted,'''' Sfc, 3 Ins. 25. Fost. 232. 1 East, F. C.
128. If one overt act be proved by one witness in the county in which the trial is had,
whicl) gives the grand jury jurisdiction to inquire, another overt act of the same species
of treason proved by another witness in a different county will make two witnesses
within the stat. 7 Will. 3. Case of Jellius, 1 East, P. C. 130. Guvuii's case, 2 .Si. Tr. 873.
Though it requires two witnesses to each treason, yet a collateral fact not tending to the
proof of the overt acts, may be proved by one. Fost. 240. 'Vaughan^s case, 5 St. Tr. 38.
By the Constitution, Art. 3. Sect. 3. No person shall be convicted of treason, unless on
the testimony of two witnesses to the same overt-act, or confession in open court. The
same provision is to be found in the 1st sect, of the act of 30 April, 1790. The provision
in the Constitution, that the two witnesses must be to the same overt act, was in conse-
quence of a construction which had prevailed in England, that though t#o witnesses
were required to prove an act of treason, yet if one witness proved an act and another
witness another act of the same species of treason, it was sufficient; a decision which
has always appeared to me contrary to the true intention of the law which made two
witnesses necessary. Per Iredell, J. Charge to the Grand Jury, Tr. of Fries, 14. When
two witnesses are produced, who prove the overt act laid in the indictment, there might
be then evidence drawn from otlier cuunties respecting the intention; this is the opinion
of Judge Foster, and it is my opinion, id. 174. Two witnesses are necessary on the
indictment as well as upon the trial in court. Id. 14. But it was said by Marshall
C. J. (1 Burr''s Tr. 142,) that, though "the Constitution declares that two witnesses
are necessary to produce conviction; yet it may not be so strictly and absolutely neces-
sary to authorise an indictment." The same proof is not required to commit a person
for high treason as would be necessary to convict him on a trial in chief id. 11. Serg.
on Const. 375. See also Resp. v. ISlCarty, 2 Ball. 86. Judge Wilson's Works, vol. 2.
p. 3G4. Davis's Virg. Cr. Law, 56.
301 HISTORIA PLACITORUM CORONA.
case of treason, yet in lord Casthhaveii's case(A) upon an indiet-
ment for a rape upon his lady by another by her husband's preseiit
force, she was received as a witness by the advice of the judges, that
assisted at that trial, and upon her evidence he was convicted and
executed.
But a woman is not bound to be sworn or to give evidence
against another in case of theft, ^'C. if her husband be concerned, tho
it be material against another, and not directly against her husband.
Dull. cap. \\\.{i)
Upon an indictment upon the statute of 3 H. 7. cap. 2. for taking
away forceably and marrying a woman, the woman so married may
be sworn against her husband, that so marries her, if the force were
continuing upon her till the marriage: and thus it was done in the
case of lady Fulivood, M. 13 Car. 1. B. R.Croke{k) and accordingly
seriatim resolved by all the judges of the king's bench lately in the
case of Brown, Trin. 25 Car. 2.{l) for these reasons: 1. Because
otherwise the statute would be vain and useless, for possibly all that
were present were of the offender's confederacy. 2. The marriage,
tho a marriage de facto, yet if it were effected by a contimied act of
force, was not a marriage de jure, for it was dissolvible by
r 302 1 divorce, unless ratified by a subsequent free cohabitation or
consent. But 3dly and principally, because it was fla-
grante crimine, for the child was taken away upon the Thursday,
married the Friday, and seized by the guardian the next day, before
they had lain together, and the force was all that while continuing
upon her. 4. There were other witnesses, that proved the first taking
away by force against the child's will, tho there were no witnesses
to prove the marriage forceable but herself, who expressly swore,
that she was married against her will; upon all which circumstances
it was ruled, that she should be examined in evidence, and the credi-
bility of her testimony left to the jury ; but most were of opinion, that
had she lived with him any considerable time, and assented to the
marriage by a free cohabitation, she should not have been admitted
as a witness against her husband; he was convicted and had judg-
ment of death, and was executed. [5]
Regularly an infant under fourteen years is not to be examined
upon his oath as a witness; but yet the condition of his person, as
if he be lintelligent, or the nature of the fact may allow an exami-
nation of one under that age,(m) as in case of witchcraft an infant
(//) Hut. 115. Rush. Collect. Vol. II. p. 93-101. State Tr. Vol. I. p. 366.
(i) N. Edit. cup. 1G4. p. 540.
{k) Cio. Car. 482, 484, 488, 492. the like was done in the case of Haagen Swendsen,
Mich, 1 Ann. B. R. Stale Tr. Vol. V.p. 453.
(/) 1 Ven. 243. 3 Keb.VJ'S.
(m) By the laws of Ina a child ten j'ears old was allowed to be a witness in theft.
Vide L L. Ina. I. 1.
[5] As to the competency of luibsand and wife to five evidence for or against each
other, see Roscoe; Cr. Ev. (Mr. Sharswood's Edition,) 112.
HISTORIA PLACITORUM CORONiE. 802
of nine years old has been allowed a witness against his own mother.
Dalton.{n)
And the like may be in a rape of one under ten years upon the
statute of IS Eliz. cap. 6. and the hke hath been done in case of bug-
gery upon a boy upon the statute of 25 H. 8. cap. 6.
And surely in some cases one under the age of fourteen years, if
otherwise of a competent discretion, may be a witness in a case of
treason: vide qnse snpra dixi,p. 26.
A man concerned in point of interest is not a lawful accuser or
witness in many cases, the party to an usurious contract, cannot be
a witness to prove an usurious contract, upon an information, if the
money be not paid, for he swears to avoid his own debt or
security ;(o) but if the money be paid he may be a witness [303']
to prove it, where another informs, for he is to gain nothing.
And therefore if any man hath the promise of the goods or lands
of the party attainted, he is no lawful witness to prove the treason.
A person outlawed in trespass is nevertheless a lawful witness, but
no lawful juryman or indicter in case of felony or treason. Sir Wil-
liam fVilhipoPs case.(/?)
A father or son or adversary in a suit is a witness for or against
a person accused of any crime, yet not always a competent jury-
man.
A pariiceps criminis is in some cases a lawful accuser within this
statute, in some cases not.
An approver shall be sworn to his appeal, Stamf. Pla. Cor.;(cf)
but it seeins, that he shall not be a witness upon the trial, if the party
accused put himself upon his country, because, if he fail in proving
the party guilty, he shall be hanged.
In Sir Percy Cresbi/^s case, P. 19 Jac. Nor/e's Pep. p. 154, placiio
676. in Camera Stellald, if two defendants be charged for a crime,
one shall not be examined against the other to convict him of an
offense, unless the party examined confess himself guilty, and then
he shall be admitted.
9 Dec. 15 Car. 2. at Newgale, Henry Trew was indicted of burg-
lary, and by advice of Keeling chief justice, Broivn justice, and
IVilde recorder, Perrin that was in goal for two other robberies, and
confessed himself to be in this burglary, was sworn as a witness
against Trew, but he was not indicted of the burglaries or robberies.
Ex libro Bridgman.
10 Bee. 1662. Tonge, Philips, and others(r) were indicted for
treason for compassing the king's death, the question was, whether
those, that were parties in the compassing, which were not yet par-
doned, nor indicted, might be prodliced as witnesses, namely Biggs
and others; and upon conference with all the judges these points
were resolved.
(71) Dalt. Just. N. Edit. p. 541. (7) Lib. II. cap. 56. p. 145. a.
(0) Co. Lit. 6. h. (r) Keel. 17. State Trials, Vol. 11. p. 488.
ip) Cro. Car. 134. 147. TV. Jones 198.
304 HISTORIA PLACITORUM CORONA.
1. That the party to the treason, that confessed it, may be
r 304 ] one of the two accusers or witnesses in case of treason, for
the statute intended two such witnesses, that were allowable
witnesses at common law, and so may a particeps criminis be ad-
mitted as a witness, and was admitted to give evidence to the jury;
but the jury may, as in other cases, consider of the evidence and
credit of the witnesses, but he is sufficient to satisfy the statute.
2. That the confession before one of the privy council or a justice
of the peace being voluntary made without torture is sufficient as to
the indictment or trial to satisfy the statute, and it is not necessary,
that it be a confession in court; but the confession is sufficient, if
made before him that hath power to take an examination. [6]
3, The king having promised a pardon to Riggs, if he would dis-
cover the plot, he performed that part by his discovery; and this was
held by all no impediment to his testimony, for the promise was not
[6] Though the modern cases are contradictory, none of them have followed to its
full extent the doctrine of this resolution. On the trial of the rebels in 1746, the judges
admitted the confessions of the prisoners to be given in evidence against them upon
proof by two witnesses. Fost. 10. Greg^s case, I East. P. C. 134. At a conference pre-
paratory to the trial of Francia, in the year 1716, it was agreed that the confession
which the acts of Edw. VI. intended to except, was only a confession upon the arraign-
ment of the party, which amounts to a conviction; that the design of those acts was
merely to prevent any other confession from operating as a conclusion and absolute con-
viction; but that in all cases the confession of a criminal may be given in evidence
against him ; and that in case of treason, if such confession be proved by two witnesses,
it is proper evidence to be left to a jury. Id. 133. Fost. 241. In Willises case, 8 St. Tr.
250. a witness was called to prove what the prisoner said to him touching the share he
had in the treason; it was objected that no confession, unless it be made in open court,
ought to be admitted; but the judges were clear that such a confession was admissible,
and would go in corroboration of other evidence to the overt acts. Though it might be
still a disputable point, whether a confession out of court proved by two witnesses, was
of itself sufficient to convict. Upon this point Ward, C. B. observed, "a confession
shall not supply the want of evidence, tliere must be still two witnesses to the treason.
But to say it sliall not be given in evidence, there is no ground for it." And the Sol.
Gen. Sir Robert Eyre, admitted that the prisoners should not be convicted on a trial, with-
out two lawful witnesses, that was the thing provided for. That it was to exclude a
precedent that liad been settled in Tongas case, but it was not designed to exclude all •
confessions. That they were evidence at law and always must be so. That tiie design
of the act was to exclude confessions from having the force of a conviction, unless it
were in a court of record ; and to prevent a confession proved by two witnesses from
being a suflicient ground (or a conviction. See Vaughaii's case, 5 St. Tr. 38. Salk. 634.
Case of (S/HJ^//, alius May, Fost. 242. In Berwick's case, Fost. 11. Lord C. J. Willie Sf
Mr. J. Abnc)/ thought that a confession after the fact proved by two witnesses, was suffi-
cient to convict under the 7 Will. 3. Foster, J. doubted; he was clear that it might be
given in evidence as a corroborating proof His doubt was, whether it being proved by
two witnesses, is a conclusive evidence, or an evidence sufficient of itself to convict with-
out otlier proof; since the 7 Will. 3. seems to require two witnesses to overt acts, or a con-
fession in open court. The words "open court" are omitted in both of the acts of Edw.
VI.; they were inserted in the 7 Will. 3* in order to carry the necessity of two wit-
nesses to the overt acts furtlier than the statutes of Edw. VI. were tliought to carry it.
Fost. 240. see 1 East, P. C. 131 et seq.
The Constitution, Art. 3. Sect. 3. and Sect. 1. of the act of 30 April, 1790, require the
confession to bo made in open court. It was held in the Tr. of Fries, 171, 176, 206,
that the confession of the prisoner, althougli proved by two witnesses, if made out of
court, is not of itself sufficient to convict; though it might be received as corroboratory
proof of the intent or quo animo; or by way of confirniiition of wiiat has been before
sworn to. See Resp. v. Roberts, 1 Dull. 40. Resp. v. McCurty, 2 id. 86.
HISTORIA PLACITORUM CORONA. 304
applied to witnessing against any other; but two justices(.9) held, that
if the king promised a pardon upon condition, that he would witness
against any others, and that being acknowledged by Bi<rgs when he
he took upon him to give evidence, <5'C. that will make him uncapa-
ble to give evidence, because he swears for himself:(/) but in this
point the greater number were of a contrary opinion, (z/) ex libro
Bridfjrriian verbaiim,and I remember the consultation and resolution
accordingly.
And accordingly at the sessions of Newgate 1672. Mar?/ Price
was convicted of treason in clipping the current money of England
by the testimony of those, that were participes criminis,{x) namely
Throgmorton and others, who brought her broad money upon allow-
ance of lOl. per Cent, and carried off the dipt money into their mas-
ter's cash.
The like conviction was in the same year of Hyde and
others of robbery upon the highway by one that was a party f 305 1
in the robbery, but not indicted.
But in these and the like cases, 1. The party that is the witness, is
never indicted, because that doth much weaken and disparage his
testimony, but possibly not wholly take away his testimony. 2, And
yet, tho such a party be admissible, as a witness in law, yet the cre-
dibility of his testimony is to be left to the jury, and truly it would
be hard to take away the life of any person upon such a witness, that
swears to save his own, and yet confesseth himself guilty of so great
a crime, unless there be also very considerable circumstances, which
may give the greater credit to what he swears.
If./?. B. and C. be indicted of perjury on three several indictments
concerning the same matter, ^. pleads not guilty, B. and C. may be
examined as witnesses for ./?. for yet they stand unconvicted, altho
they are indicted, 19 Car. 1. B. JR. Bilmore's case.
By the statute of 1 4* 2 P. Sc M. cap. 14. justices of peace ought
to examine the party and take informations touching offenses brought
before them, and certify them at the next goal-delivery.
Tho jnstices of peace cannot hear and determine treason by virtue
of their commission of the peace, no nor take an indictment of it, yet
they may take examinations and informations touching such offense
of the party brought before them, and certify them according to that
statute; and those informations taken upon oath, as they ought to be,
and sworn to, by the justice or his clerk, that took them, to be truly
taken, may be read in evidence against the prisoner, if the informant
be dead, or not able to travel, and sworn so to be; yea by some opi-
nion, if he were bound over and appear not, they may be read, which
seems to be questionable.
(si These were our author and J. Brown.
it) Vide postea part. 2. cap. 27.
(«) Of this contrary opinion was the court in the case of Christopher Layer, Mich.
9 Geo. I. B. R. State Tr. Vol. VI. p. 259.
(x) But it does not appear in this case, whether they were promised a pardon or note
the like resolution was in the case of Joseph Clark for coining 16 Car. 2. see Kel. 33.
but in that case the witness had actually obtained a pardon.
VOL. I. 31
305 HISTORIA PLACITORUM CORONA.
And in such case information upon oath taken before justices of
the peace of one county may be transmitted before justices of goal-
delivery of that county, where the otfense was committed, viz. if the
otfender were brought before that justice; qusere tamen^ be-
\_ 306 ] cause the offense was out of his jurisdiction; yet vide Bait,
cap. 111. jo. 299. accordant. [y)
He, that hath a remainder expectant upon an estate tail, shall not
be allowed as a witness, and so ruled, but a disseisor may be a wit-
ness to a deed made to the tenant. 12 Ass. 12.
Mich. 1652. A commission issued to examine the validity of a
marriage supposed to be done by force, and upon that a divorce was
had: an indictment was against Welsh, that married the woman, the
depositions in the cause of divorce were offered to prove the force,
but rejected, because in a suit of another nature and jurisdiction,
Welsh's case.
A man convict of conspiracy, perjury, or forgery is not a lawful
witness. Crornpf. de pace regis 127. b. Dalt. cap. lll.(z) but if he
be pardoned, it seems he may be a witness.
And thus far concerning the capacity or incapacity of the wit-
nesses.
2. In relation to the manner of their testimony, the opinion in
Dyer of a witness by hearsay 1 Mar. Dy. 99. b. was rejected by all
the judges in the lord Lumly^s case, H. 14. Eliz. Co. Pla. Cor. 25.
but if it be a hearsay from the offender himself confessing the fact,
such a testimony upon hearsay makes a good witness within the
statute.
Tho information upon oath taken before a justice of peace may
make a good testimony to be read against the offender in case of
felony, where the witness is not able to travel, yet in case of treason,
where two witnesses are required, such an examination is not allow-
able, for the statute requires, that they be produced upon the arraign-
ment in the presence of the prisoner to the end that he may cross
examine them. [7]
iy) N. Edit. cap. 1 64. p. 544. (z) p. 542.
[7] By the Act of 7 ^ 8 Will. 3. c. 3. s. 8. no evidence shall be admitted or given of
any overt act that is not expressly laid in the indictment. This does not prevent overt
acts not laid from being- given in evidence, if they be direct proof of any of the overt
acts which are laid. R. v. Rookwood, 4 St. Tr. 661. 697. Holt, 683. also, 4 St. Tr. 722.
731. 6 id. 282. Fost. 9. 22. 245. R. v. Watson, 2 Stark, n. P. 134. The evidence must
be applied to the proof of the principal treason; for the overt act is the charge to which
the prisoner must apply his defence. And whether the overt act proved be a sufficient
overt act of the principal treason laid in the indictment, is matter of law to be deter-
mined by the court. ^4rc^. C. P. 461. If any overt act be proved against the prisoner
in the proper county, acts of treason tending to prove such overt act, though done in
another county, may be given in evidence. Fost. 9. 22. 4 St. Tr. 627. 655. 6 id. 292.
8 id. 218. 9 id. 558. 580. 8 mod. 91. 1 East, P. C. 125. Resp. v. Malin, 1 Dull. 35.
1 Burros Tr. 48. If tlie treason consist of a conspiracy, any act of the defendant's
accomplices, done in furtlierance of the common design, although not laid as an overt
act in the indictment, may be given in evidence, provided it be direct proof of an overt
act laid. R. v. Hardy, 1 East, P. C. 98. R. v. Stone, 6 T. R. 527. Lord LovaVs case,
9 St. Tr, 670. When several overt acts are laid, proof of any one of them will main-
HISTORIA PLACITORUM CORONA. 306
And thus much concerning the statutes in the time of Edward VI.
and evidence upon indictments, I shall only add this.
In civil actions, as trespass against Ji. B. and C. if no evidence be
given against any one to prove him guilty, he may be examined on
the part of the defendant, and stands as a competent wit-
ness; and I see no reason, why if two or three persons be [ 307 ]
indicted, and no evidence given against one or more of them,
but that he may be a witness for the other; but otherwise it is, if
there be but a colourable evidence against him.(t)
(t) Our author should here have proceeded to his fourth g'eneral head, and have
shown, what would be a confession within this statute of 5 S^ 6 Ed 6. caip. 11. but proba-
biy he thought that sufficiently done by the second resolution in Tonge'i case mentioned
by him, f. 304.
CHAPTER XXV.
CONCERNING TREASONS DECLARED AND ENACTED FROM 1 MAR. TILL
THIS DAY, VIZ. 13 CAR. 2.
I COME to the statutes concerning treason in the times of queen Marr/y
queen Elizabeth, and so downwards.
The first statute in this period is 1 Mar. cap. 1. consisting of three
clauses.
1. "That no act, deed or offense being by act of parliament made
treason, petit treason, or misprision of treason, by words, writing,
cyphering, deeds, or otherwise whatsoever, shall be taken, had,
deemed, or adjudged to be high treason, petit treason, or misprision
of treason, but only such, as be declared and expressed to be treason,
petit treason, or misprision of treason, in or by the act of parliament
of 25 E. 3. touching treason or the declaration of treasons, and none
tain the count, provided the overt act so proved is a sufficient overt act of the species of
treason charged in the indictment. Post. 194. If the evert act be laid with circum-
stances not necessary to constitute the act of high treason, tfiey need not be proved, but
may be regarded as surplusage. LowicWs case, 4 St. Tr. 72'2. When words of incite-
ment have reference to an act, after giving evidence of the words, you may give evi-
dence of the act, in order fully to explain them. R. v. Lord George Gordon, Doitgl. 590.
The intention may possibly be gathered at the place where the act was committed, or it
may not; if not, evidence is admissible to prove it elsewhere. Tr. of Fries, 175. In
order to maintain a count for levying war, evidence must be given to prove a war
actually levied, and not merely a conspiracy to levy war. 1 Hawk. c. 17. s. 27. The
fact that the persons adhered to being enemies, may be proved by the proclamation of
war; or public notoriety is sufficient evidence of it. Fost. 219. The time at which the
overt acts are alleged to have been committed need not be proved as laid; it is enough
if they be proved to have been committed at any time within three years before the
finding of the indictment. R, v. Charnocic, Salk. 288. R. v. Lord Balmarino, 9 St. Tr.
589. R, V. Townly. Fost. 7. 1 East, P. C. 125. On motion to commit, no evidence of
a treasonable intent will be received, till the fact of treason having been committed is
first proved; but it is otherwise on the trial of an indictment for treason. 1 Burros 96.
469. See 1 East, P. C. 96. 115. Tucker's Bl. Com. Apdx. 41. Fost. 362. Datis' Virg.
C. L. 56.
807 HISTORIA PLACITORUM CORONA.
other, nor that any pains of death, penalties, or forfeitures in any
wise ensue or be to any offender or offenders for doing or committing
any treason, petit treason, or misprision of treason, other than such
as be in the said act ordained and provided, any statute made
[308]] before or after the said 25th year of Edward III. or any
declaration or matter to the contrary notwithstanding.
2. "That no advantage be given by this act to any person arrested
or imprisoned for treason, petit treason, or misprision of treason
the last day of September last past, or heretofore indicted or out-
lawed, or attainted of treason, &;c. or excepted out of the queen's
pardon.
3. " That all offenses made felony, or appointed to be within the
case oi jirxmunire by any statute since the first day of the first year
of king Henry VIII. (not being felony or within the case oi prsemu-
nire before) and all and every branch, article, clause mentioned or
declared in the same statutes concerning making of any offense
felony, or within the case o{ prseniunire, and all pains and forfeitures
concerning the same, or any of them, shall be from henceforth void
and repealed."
This excellent law at one blow laid flat all those numerous trea-
sons, misprisions, &c. at any time enacted since 25 E. 3. and all
felonies and prxmunires enacted in or after 1 //. 8.
As touching the first of these.
1. Hereby all those numerous treasons newly enacted in any for-
mer king's time since 25 E. 3. a catalogue of most of which is before
given, are wholly taken away.
2. Hereby all those treasons, that were declared treasons, so far
forth as those treasons had their strength from such declarations, and
were not really within the statute of 25 E. 3. are wholly taken
away, and left purely to be determined according to the statute
of 25 E. 3. and so far forth and no farther, than that statute war-
ranteth.
And therefore the declaration of 3 R. 2. touching the killing of an
embassador, namely Jo/ui Imperiall, the declaration of 3 H. 5. con-
cerning clipping and impairing of coin, the declaration of Moriimer's
treason in breaking prison 2 H. 6. and all others of that kind are
now wholly put out by this statute, Coke upon the statute de fran-
genlihus prisonam,{a) tho it is true, that it appears by 1 8^
[ 309 ] 2 P. (§• M. cap. 11. they thought that clipping and impair-
ing of money had remained treason by the declarative law of
3 H. 5. but the statute of 5 Eiiz. cap. 11. hath declared the contrary,
and put that out of question.
3. But it repeald not the forfeitures for old treasons, tho those
forfeitures were enacted by statutes made after 25 E. 3, and there-
fore the forfeiture of estates-tail for treason given by 26 H. 8. con-
tinues notwithstanding this statute, Co. P. C. p. 19. and so it was
resolved by all the judges of England m the lord Sheffield's case,(*)
(a) 2 Co. Instil. 590. (*) Palm. 351. W. Jones, 69.
HISTORIA PLACITORUM CORONA. 309
Stamf. 1S7. b. \2 Eliz. Dy 2S.9. the reason is before given, cap. 23.
/?. 241. for the relation of the repealing clause is only to treasons
not contained in 25 E. 3. not io forfeitures not contained in 25 E. 3.
for indeed 25 E. 3. creates no forfeitures, but only declares what the
common law was, and enacts no farther touching forfeitures.
4. But this act did not meddle with those new laws, that directed
special proceedings, trials, S,-c. or other matters of that nature relating
to treason, but that was done after by 1 <§• 2 P. 4' M. cap. 10. de quo
postea.
5. The preamble is very considerable, which takes notice of the
severity of former statutes, that made words only without other fact,
or deed, to be high treason, which was one of the causes of this
general repeal.
Touching the second clause, as is before observed in the precedent
chapter, the repeal by 1 Mar. had discharged all offenses committed
before that repeal against the statutes repeald, if it had not been
specially provided to the contrary by the proviso of this act touching
persons formerly indicted.
Now as to the third clause, it also took away all new felonies
made since the first day of the reign of Henri/ VIII. but whether
either of these clauses of repeal did take away those previous
punishments, which for the first offense was made forfeiture of
goods, and the second or third offense made treason, whether, I
say, this statute took away those penalties, which were less than
felony or treason in the first or second offense, or only those punish-
ments which were "made treason or felony, may be a ques-
tion ; as for instance, that of 1 E. 6. cap. 12. the 5th clause, [310 J
which makes certain offenses by words punishable with for-
feiture of goods for first offense, loss of profits of lands for second
offense, and treason for the third offense; whether this statute ex-
tends to successors, and (tho the penalty of treason for the third
offense be repeald by this act) whether the penalties for the first and
second offenses be repeald, seems to me doubtful ; I rather think
they are not.
And now this act having laid all former new treasons, felonies,
and misprisions flat, and reduced all to the standard of 25 E. 3. the
necessity of state and public peace puts the queen and her parlia-
ment nevertheless to begin new provisions.
1 Mar. sess. 2 cap. 6. " If any person shall falsely forge or coun-
terfeit any such kind of coin of gold or silver, as is not the proper
coin of this realm, and is or shall be current within this realm by the
consent of the queen, her heirs or successors, or if atiy person do
falsely forge or counterfeit the queen's sign manual, or privy signet,
or privy seal, then every such offense shall be adjudged high treason,
and the offenders, their counsellors, procurers, aiders and abetters
judged traitors against the queen, her heirs and successors, and suffer
and forfeit as in high treason."
Concerning this statute much hath been said before.
1. It is a perpetual act, and not personal only to the queen, for as
810 HISTORIA PLACITORUM CORONA.
the word king may include a successor, so the word queen may in-
ckide a succeeding king or queen, and that it was so intended here
is apparent by the words in the conchision shall be adjudged traitors
against the queen, her heirs and successors ; and accordingly it hath
been often resolved.
2. That the foreign coin (the counterfeiting whereof is made trea-
son by this act) must be such, as is so made current by proclamation,
for by the statute of 17 ^. 2. cap. 1. foreign coin is not to run in
payment in England, and therefore there must be an act under the
great seal, as all proclamations ought to be, before it can be current
within this statute: vide accordant statut. 5 Eliz. cap. 11. and 18
EUz. cap. 1.
3. It must be a counterfeiting of that foreign coin, which
fSll ] is stamped in gold or silver, viz. the greatest part gold, or
the greatest part silver, for denominatio fit a tnajore parte;
therefore if there be a foreign coin of copper, or brass and copper, it
is not within this statute, but it is not necessary, that the counterfeit
of it must be gold or silver, for if that be copper gilt, or alchymy
after the similitude of foreign coin of gold or silver, it is within this
act, because the prototype is a coin of gold or silver.
1 Mar. sess.2. cap. 12. The act against riotous assemblies is the
very same in substance with that of 3 <S' 4 E. 6. cap. 5. only changing
treason into felony within clergy, and nota bene the power given to
suppress such assemblies by force, and indemnifying the suppressors,
tho some of the rioters be killed : this act was continued by 1 Eliz.
cap. 16. during that queen's life, and till the neit session after, and
then expired.(^)
1 4* 2 P. 4' M. cap. 3. " If any person shall maliciously and of his
own imagination speak any false, seditious and slanderous news,
rumors, sayings, or tales, of the king or queen, then the person being
convict and attainted, as in the act is expressed, shall be set upon the
pillory and have both his ears cut off, unless he pay one hundred
pounds, and suffer three months imprisonment; and if it be of the
reporting of any other, then to stand on the pillory and lose one of
his ears, unless he pay one hundred marks within one month after
judgment, and suffer one month's imprisonment.
"And if any shall maliciously devise, write, print, or set forth any
writing containing any false matter of slander, reproach, or dishonour
to the king or queen, or to the encouraging, stirring or moving of any
insurrection or rebellion within this realm or the dominions thereof,
or shall procure the same to be written, printed, or set forth (the said
offense not being punishable as treason within the statute of 25 E. 3.)
the offender shall for the first offense have his right hand stricken off.
" The second of any of these offenses after a former con-
r 312"] viction is made punishable with loss of goods and perpe-
tual imprisonment: justices of assise, ^-c. shall have power
(b) But a new act to much the same purpose was made, 1 Geo. 1. cap. 5. which is
perpetual.
HISTORIA PLACITORUM CORONA. 312
to hear and determine offenses, 8,-c. and to commit persons suspected
withont bail; no person impeachable for words, unless convict within
three months after the offense : peers to be tried by their peers."
Upon this act these things are observable: 1. That the law-makers
did not take seditious words to be within the statute of 25 E. 3. for
then they would have added the same clause as in the other case,
viz. (not beiyig treason ivithin the statute of 25 E. 3.) Again,
2. That they did take it, that some seditious writings might be trea-
son within the statute of 25 E. 3. for it is an overt-act, as hath been
formerly observed.(t) 3. That as some writings exciting insurrec-
tion might be treason within the statute of 25 E. 3. so some writings,
that might possibly by construction have the same effect, might not
be within that statute, for the law-makers cannot be supposed to
intend to make any thing, that was treason within the statute of
25 E. 3. to be less than treason; and by consequence and consequen-
tial illation many things might by a witty advocate be construed and
heightened to be to move insurrection and rebellion, which imme-
diately, and in their own nature, nor in the intention of the writer,
were never so intended; this statute died with the queen, but was
revived 1 Eliz. cap. 6. during that queen's life.
1 4' 2 P. 4' M. cap. 9. " If any by express words or sayings have
prayed, or shall pray, that God would shorten the queen's life, or
take her out of the way, or any such like malicious prayer amount-
ing to the same effect, they, their procurers and abetters shall be
adjudged traitors.
"But as to any the offenses aforesaid perpetrated during that ses-
sion of parliament, if the offenders shall show themselves penitent
upon their arraignment, no judgment of treason shall be given against
them, but a lesser punishment may be inflicted."
So that they took not this to be a treason within the
statute of 25 E. 3. neither is it thought to be a very great [313 3
offense, for it is an appeal to God, who we are sure is not
moved by such wishes and prayers contrary to his own command,
Thou shalt not curse the ruler of thy people, Exod. xxii. 28.
\ Sc 2 P. 4* M. cap. 10. consisteth of several remarkable clauses.
1. "If any during the marriage between the king and queen shall
imagine to deprive the king from having jointly with the queen the
style, honor, and kingly name of the realms and dominions belonging
to the queen, or to destroy the king during the matrimony, or to
destroy the queen, or the heirs of her body, being kings or queens
of this realm, or to levy war within the realm or marches of the
same against the king during the marriage, or against the queen or
any of her said heirs, kings or queens of this realm, or to depose the
queen or the heirs of her body kings or queens of this realm from
the imperial crown of this realm, and the said compassings malicious-
ly, advisedly and directly shall utter by open preaching, express
words or sayings, or if any person by express words shall maliciously,
(t)i>.112.
313 HISTORIA PLACITORUM CORONA.
advisedly, and directly declare or publish, that the king during the
marriage ought not to have jointly with the queen the style, honor
and kingly name of this realm, or that any person, being neither the
now king or queen, during the marriage between them ought to have
the style, honor and kingly name of this realm, or that the now queen
is not, or of right ought not to be queen of this realm, or after her
death the heirs of her body, being kings or queens of this realm,
ought not so to be or to enjoy the same, or that any person, other
than the queen during her life, or after death, other than the heirs of
her body, as long as one of the heirs of her body, shall be in life,
ought to be queen or king of this realm, then every such offender shall
lose to the queen all his goods and chatties, and forfeit the issues of
his lands during his life, and have perpetual imprisonment; the
second offense after a former conviction shall be treason.
2. " And if any by writing, printing, overt-act, or deed
(]314] shall maliciously, advisedly and directly utter the things
aforesaid, then they, their abetters, procurers, counsellors,
aiders, and comforters knowing the said offense to be done, and
being thereof convicted and attainted by the laws and statutes of
this realm, shall be adjudged high traitors, and forfeit their goods,
lands and tenements to the queen, her heirs aud successors, as ia
case of high treason.
3. " Provision for the government of the qiieen's children.
4. " If any person, during the time that the king shall have the
ordering of the queen's children, shall compass to destroy the king,
or to remove him from the government of the said children, it
shall be treason.
5. " That all trials hereafter to be had, awarded or made for any
treason, shall be had and used only according to the due order and
course of the common laws of. this realm, and not otherwise, saving
to all persons, (other than the offenders and their heirs, and such:
persons as claim to any of their uses,) all such rights, titles, interests,
possession, leases, 4*c. which they had at the day of the committing
of such treasons, or at any time before, as if this act had never been
made.
6. " Concealment of any high treason shall be adjudged only mis-
prision of treason, and to forfeit and suffer as in case of misprision
notwithstanding this act.
7. " Trial by peers is saved in treason or misprision of treason.
8. " None to be impeached for words, unless indicted within six
months after the offense.
9. " Witnesses examined to or deposing any treasons in this act,
or at least two of them shall be brought forth before the party
arraigned, if he require the same, and say openly in his hearing
what they can say against him concerning the treasons in the indict-
ment, unless the party arraigned shall willingly confess the same
upon his arraignment.
10. " In all cases of high treason concerning coin current
£315 3 within this realm, or counterfeiting the king's or queen's
HISTORIA PLACITORUM CORONA. 315
signet, privy seal, great seal, or sign manual, such manner of trial,
and no other, shall be observed and kept, as heretofore hath been
used by the common laws of this realm, any law, statute or other
thing to the contrary notwithstanding.
" The counsellors, procurers, comforters, and abetters for the first
offense to suffer as tfie principal in the first offense, and procurers,
comforters and abetters for the second offense to forfeit as the princi-
pal in the second offense."
This statute for so much as concerns the forfeiture or punishment
inflicted for words, S,^c. and likewise the treasons newly enacted was
but temporary, and died when the queen died without issue.
But there is still observable,
1. The great distinction, that was used between words and
writing; those very things, which written were made in the first
offense treason, being only spoken were in the first offense bul mis-
demeanor, altho many of the words there mentioned sounded high,
as namely that the queen is not or ought not to be queen, but some
person else, whereby we may gather the opinion of parliaments in
those times, that regularly words, tho of a high nature, were not
treason, nor an overt-act of compassing the king's death.
The second thing observable is, that here are some treasons newly
enacted, which yet were treasons within 25 E. 3. as compassing to
destroy and depose the queen, and declaring the same by writing or
overt-act; and therefore this clause was omitted in the statute of
1 E/iz. cap. 6. and left to the statute of 25 E. 3.
The 3d thing observable herein is, that the queen's husband is
not within the act of 25 E. 3. therefore it was necessary to have an
act of parliament for the securing of him, who was only the queen's
husband.
4. That tho there was a communication of the regal title to the
queen's husband, yet even that could not have been but by act of
parliament, and yet no more is communicated, but the
title and name, not the authority and rule of a king of [316]
Enj^land.
The fifth clause concerning restoring of trial of treason according
to the course of the common law is of great consequence and use,
and is perpetual.
1. By this clause of the statute as to the case of high treason, the
statutes of 27 E. 3. cap. 8. 28 E. 3. cap. 13. 8 H. 6. cap. 29. for trial
of an alien per medielatem linguse are wholly repealed, and the trial
shall be by Englishmen, 1 Mar. Dy. 144. Shirly's case, H. 36 Sliz.
Dr. Lopezes case[l] ruled per omnes jiisticiarios. Co. P. C. p. 27.
2. The trial of a lunatic without issue joined by 33 H. 8. cap. 20.
and in a foreign county by 33 H. 8. cap. 23. and for treasons in
fVales 26 H. 8. cap. 6, 32 H. S. cap. 4. are all repealed by this statute.
Co. P. C.p. 24, 27.
3. But whether the statute of 1 E. 6. and 5 S,^ 6 E. 6. concerning
[1] There is an account of Dr. Lopez's treason in Lord Bacon's Works, 2 vol. p. 216.
316 HISTORIA PLACITORUM CORONA.
two witnesses be hereby repealed vide sitpra p. 29S. only the 9th
and 10th clauses of this statute seem' strongly to imply, that this
statute intended the repealof it, for otherwise why should that special
provision be added in this statute, for at least two of the witnesses
formerly examined to repeat their testimony to the prisoner, if he
desires it, when the statute of 5 «§• 6 E. 6. had more effectually pro-
vided for the same thing.
4. But the statute of 28 H. 8. cap. 15. concerning the trial of trea-
son committed upon the high sea is not repealed, nor the statute of
35 H. 8. cop. 2. for trials of treasons out of the realm, because there
was no way regularly appointed at common law for the trial of
those treasons being done out of the bodies of counties; but it
seems the trial of treasons committed in any place in rivers, or parts
within the bodies of counties, tho the admiral claimed jurisdiction
there, is restored to the common law, where it was originally
triable. [2]
Neither doth the act extend to petit treason, for treason generally
spoken is intended of high treason ; therefore the trial, as to that,
stands in the same manner, as it was before the making of that act.
5. Peremptory challenge in case of high treason is restored
[317 ] by this act, and the statute of .33 H. 8. cap. 23. as to that
point repeald, vide accordant Co. P. C. p. 27. <§• libros ibi ;
so that at this day he may challenge thirty-five, viz. under three
juries peremptorily. Co. P. C. ibidem.
\ k.2 P. &f M. cap. 11. " Whosoever shall bring from the parts
beyond sea into this realm, or into any of the dominions of the
same, any false and counterfeit money, being current within this
realm by the sufferance and consent of the queen, knowing the same
coin to be false and counterfeit, to the intent to utter or make pay-
ment with the same within this realm, or any of the dominions of the
same, by merchandizing or otherwise, the offenders, their counsel-
lors, procurers, aiders and abetters in that behalf, shall be adjudged
offenders in high treason, and after lawful conviction shall suffer and
forfeit, as in cases of high treason.
" If any be accused or impeached of any offense within this statute,
or of any other offense concerning the impairing, forging, or counter-
feiting any coin current within this kingdom, he shall be indicted,
arraigned, tried, convicted, or attainted by such like evidence, and
in such manner and form, as hath been used and accustomed within
this realm before the first year of the reign of Edward VI. any law,
statute, Sf'c. to tlie contrary notwithstanding."
Upon this statute several things are observable.
1. That the foreign coin in this case must be such, as is made cur-
rent in this realm by the consent of the queen, which cannot be
without proclamation by writ under the great seal, as hath been
before said ;?. 213 & 310.
2. That the party, that brings it in, must know it to be counterfeit.
[2J 1 East P. C. 103. [ '
HISTORIA PLACITORUM CORON.^. 317
. 3. That it must be brought into the king's dominions from some
place, that is out of the king's dominions, and therefore the importa-
tation out of Ireland is held not to be an importation witliin this
statute, for that is within the dominions of this reahn, tho not within
the realm. [3] 3 H. 7. 10. Sr vide supra cap. 20. p. 225. Co. P. C.
p. 18.
4. It must be brought with an intent to merchandize or
make payment within this realm, and this intent maybe [318]
tried by circumstances, tho the offender hath not yet actually
made payment or merchandize with it: vide antea p. 229.
5. This is a new law, for the statute of 4 //. 7. cap. 18. whereby
it was formerly enacted, is repealed by 1 Mar. cap. 1.
6. It is a law perpetual, tho it speaks only of coin made current
by the consent of the king and queen our sovereign lord and lady,
and so it hatli been still taken.
7. That at this time it was taken, that impairing of the coin cur-
rent within this realm was treason as to the proper coin of this realm
by force of the declarative law of 3 H. 5. cap. 6. and that this was
not repealed by 1 Mar. cap. 1. for there was no other law in force
newly enacted for making impairing of the coin treason between
1 Mar. cap. 1. and 1 4* 2 P. S; M. cap. 11. but this error is reformed
by the declaration of 5 EHz. cap. 11.
8. That without any difficulty in the case of counterfeiting coin
current in this kingdom there is no necessity of two witnesses, neither
upon the trial nor upon the indictment, so that questionless, as to
this treason, the clause of the statutes of 1 and 5 E. 6. concerning
two witnesses is wholly repealed, for the statute saiih, he shall be
indicted, S,-'C. the omission of which word in the general clause of
1 S,' 2 P. <§• M. cap. 10. which concerns treasons in general, is that
which gave the great countenance to that opinion of my lord Coke,
that in other treasons there must be two witnesses upon the indict-
ment, tho that statute, as to the trial, remitted the course of the com*
mon law,
I come now to the time of queen Elizabeth.
The statutes, that concern treason, I shall range in three ranks:
1. Such as more immediately concern the safety of the queen's per-
son. 2. Such as concern the money of the kingdom. 3. Such as
concern the safety of the queen's government in relation to papal
usurpations and matter of religion.
I. I begin with the first rank, such as concern more immediately
the safety of the queen's person.
1 Eliz. cap. 5. The statute of 1 <§- 2 P. 8,- M. cap. 10.
is recited, and that that statute extended only to queen [319]
Mary and the heirs of her body, the very same statute in
effect is enacted over again, only with an application thereof to
queen Elizabeth, and the heirs of her body, and almost all the
same clauses are over again, except that which concerns the trial of
[3J Arch. C. P. 477.
319 HISTORIA PLACITORUM CORONJi:.
treason according to the common law, and the clause of compassing
to destroy the queen, and manifesting the same by writing or overt-
act; two witnesses are required to the indictment and arraignment
of the prisoner: this act expired upon the queen's death without
issue.
1 Eliz. cap. 6. The statute of 1 Mar. sess. 2. cap. 3. concerning
seditious and false rumours is revived, as in relation to queen Eliza-
beth, under the same pains and penalties, as are therein contained,
as tho the same act had extended to the heirs and successors of
queen 7l/«ry, any doubt to the contrary notwithstanding ; but this
was personal to the queen and the heirs of her body, and was re-
pealed by 23 Eliz. cap. 2.
13 Eliz. cap. 1. "If any person during the natural life of the
queen siiall, within the realm or without, compass or imagine the
death or destruction, or bodily harm tending to death or destruction,
maiming or wounding of her person, or to deprive or depose her
from the style, honour, or kingly name of the crown of this realm,
or of any other realm or dominion belonging to her majesty, or to
levy war against her majesty within the realm or without, or to
move or stir any foreigners with force to invade this realm, or any
other her majesty's dominions being under her obeysance, and such
compasses, imaginations, devices, or intentions, or any of them shall
maliciously, advisedly, and directly publish, hold opinion, affirm or
say by any speech, express words or sayings, that the queen during
her hfe is not, or ought not to be queen of this realm of England,
and also of France and Ireland, or of any other her majesty's
dominions being under her obeysance during her life, or shall by
writing, printing, preaching, speech, express words or say-
[[320 ] ings, maliciously, advisedly, and directly publish and affirm,
that the queen is an heretic, schismatic, tyrant, infidel, or
usurper of the crown, every such offense shall be taken, deemed,
and declared by authority of this parliament to be high treason ;
and the offenders, their abetters, counsellors and procurers, and the
aiders and comforters of the same offenders, knowing the same,
being indicted, convicted, and attaint according to the usual order
and course of the common law, or according to the act of 35 H. 8.
for trial of treasons out of the realm, shall be deemed traitors, and
suffer and forfeit as traitors.
2. " If any person of any condition, place, or nation during the
queen's life pretend, utter, or publish themselves, or any of them, or
any other, than the now queen, to have right to enjoy the crown of
England during the now queen's life, or shall during the queen's
life usurp the crown, or the royal title, style or dignity of the crown
of England, or shall during the queen's life, hold, or affirm, that
the now queen hath not right to hold the said crown, realm, style,
title, or dignity, or shall not, after demand made on the behalf of the
queen, acknowledge effectually, that the now queen is true and right-
ful queen of this realm, they shall be disabled during their natural
HISTORIA PLACITORUM CORONiE. 320
lives only to enjoy the crown by succession after the queen's death,
as if such person were naturally dead.
3. " If any person shall during the queen's Hfe hold or affirm a
right, interest or snccesssion to the crown to be in any siich claimer,
usurper, or pretender, or not acknowledger after notification by pro-
clamation of such claim, usurpation or pretense, such person shall
suffer as a traitor.
4. *' If any shall maintain, that the common laws, not altered by
parliament, ought not to direct the right of the crown of England,
or that the queen [Elizabel/i] with and by the authority of par-
liament is not able to make laws of sufficient force to limit and
bind the crown of England, and the descent, limitation, inherit-
ance, and government thereof, or that this statute, or any statute to
be made by authority of parliament with the queen's royal assent
for the limiting of the crown to be justly in the queen's
person is not, or ought not to be of sufficient force to bind, F 321 ]
limit, restrain, and govern all persons, their rights and
titles, that in any way might claim an interest, or possibility in ot
to the crown of England in possession, remainder, inheritance, suc-
cession, or otherwise, every such person so holding, affirming or
maintaining during the queen's life shall be judged a high traitor,
and every person so holding after the queen's death shall forfeit all
his goods and cliattles.
5. *' If any by writing or printing declare, before the same be de-
clared and established by act of parliament, that any particular per-
son ought to be right heir to the queen (except the natural issue of
her body) or that shall print, set up, or sell such book, for the first
offense he shall suffer one year's imprisonment, and forfeit half his
goods, and for the second offense it shall be a. praemunire.
6. " Trial of a peer by his peers is saved.
7. " Saves the right of all, other than the offenders and their heirs,
claiming only as heir to the offender.
8. " Offender within the queen's dominions shall be indicted with-
in six months, and out of the dominions within twelve months.
9. " No person to be arraigned for any offense within this act,
unless it be proved by the testimony, deposition, or oath of two
lawful and sufficient witnesses, who shall at the time of the ar-
raignment of such person be brought before the party offending
face to face, and there declare all they can say against the party
arraigned, unless the party arraigned shall without violence confess
the same.
10. " The aider or comforter of such, as shall affirm the queen a
schismatic, heretic, tyrant, infidel, or usurper, shall for his first
offense, knowing the same to be comnrtlted, incur a praemunire,
and for his second oflense, after conviction of the former, shall be a
traitor.
11. " Provided, that giving charitable alms in money, meat, drink,
apparel or bedding for snstentation of the body, or health
of any offender in any offense, made treason ox prxmunire, [ 322 ]
323 HISTORIA PLACITORUM CORONA.
during the time of his imprisonment, shall not be taken to be any
offense."
Tho this act be antiquated by the death of queen Elizabeth, yet
there are (as in other acts of this nature that are expired,) divers
matters that are observable for the true understanding of the com-
mon law, and therefore I have repeated many acts of this nature at
large.
1. This act doth contain and enact some treasons as new trea-
sons, which certainly were treasons by the statute of 25 E. 3. as
compassing to destroy or depose the queen, and manifesting the
same by writing, printing, or overt-act; but it was thought or at
least doubted, that manifesting the same barely by words were not
within 25 E. 3. and it appears by the preamble, that this act was
made to take away some doubts, as well as to provide new re-
medies.
2. It partly appears by this act, that the bare conspiracy to levy
war was not treason by the statute of 25 E. 3. without a war
levied, and accordingly it was resolved P. 39 Eliz. Burton's case,
Co. P. C.p. 10. and therefore we are to be careful not to apply all
convictions of treason in the queen's time, as judgments declarative
of the statute of 25 E. 3. de proditionibus, because they were
oftentimes indicted upon this statute in the queen's time, and the
general conclusion of the indictment contra forman statuti, and
sometimes generally contra formam statut. with an abbreviation
was applicable to any statute then in force, which was most efiectual
to this purpose.
In Anderson's reports, />ar/. 2. n. 2.{c) it appears that in 37 E/iz.
divers apprentices were committed for great riots, divers other ap-
prentices conspired to deliver them out of prison, to kill the lord
mayor of London, to burn his house, to break open two houses
near the Tower, where there were arms for three hundred men,
and to furnish themselves; after which divers apprentices threw
about libels moving others to join with them and to assemble at
Bunhill, where divers to the number of three hundred assembled,
where they had a trumpet and a cloke upon a pole instead of a flag,
and as they were going towards the mayor's house, they were
[ 323 ] met by the sheriffs and swordbearer, against whom the ap-
prentices offered resistance.
It was resolved, that this was treason within the statute of 13
Eliz. for it was an intention to levy war, and altho they intended no
harm to the person of the queen, yet because it concerned her in her
office and authority, and was for such things, which the queen by
law and justice ought to do, it was a levying war against the queen,
and they were condemned and executed.
This proceeding was upon this statute, and yet perchance, the cir-
cumstances of the case wholly laid together, this might have been
(c) 2 Anders, p. 4.
HISTORIA PLACITORUM CORONA. 323
an actual levying of war within the 25 E. 3. but they thought it safer
to proceed upon this statute.
3. That, tho regularly words alone make not an overt-act of com-
passing of the queen's death, yet printing or writing may do it. Co.
P. C. p. 12, 14, and therefore an act of parliament was requisite to
make it an overt-act; yet observe how cautiously it is penned, ma-
liciously, advisedly, and directly, <§'C. leaving as little, as possibly
may be, to construction.
4. That defamatory words, tho of a very high nature, do not
always make treason; there cannot be more venomous words ordi-
narily thought of, than to say, the queen was an heretic, schismatic,
tyrant, usurper, yet an act of parliament was necessary to make it
treason.
5. That to make a man a principal in treason by comfort or aid
after the offense committed it must be knowingly, and therefore I
never thought that opinion of Stamford, fol. 41. 6. to be law, that a
receipt of a felon after attainder in the same county made a person
accessary without notice, because he is bound at his peril to take no-
tice, that he was attainted, for it oftentimes lies as little in the know-
ledge of many persons, who are convict or attainted of felony or
treason, as whether a man be guilty of it: vide tamen Dyer 355.
6. That regularly in a new treason the aiding and comforting of
the traitors, knowing them to be such, makes a man guilty of trea-
son, and therefore here is care by express provision to make the first
offense 2. praemunire.
7. Here is great care to disable the heir to the crown
from succeeding, if he usurp during the queen's life; but tho [ 324 ]
all the care imaginable was there used, yet it hath been held,
that by the accession of the crown to the person so disabled, all these
disabihties have vanished, z;«fl^e 1 H. 7. 4.:(af) see Mv. Plowden's
learned tract touching the right of succession of Mary queen of Scot-
land.
8. Nota concerning the power of the king to limit the crown by
consent of parhament.
9. That they took the statutes of 1 and of 5 <§' 6 E. 6. concerning
two witnesses to be determined, or at least not to extend to treasons
afterwards enacted, for otherwise there needed not this special care
and provision de novo for two witnesses.
10. Tliat as the aiding or comforting of one, that speaks seditious
words, made treason on the second conviction, must be for the second
{d) The words of that book, are, That the king was a person able and discharged
from any attainder eo facto, that he touk upon him the government and the being king; so
that it was not the bare accession or descent of the crown, but the being in actual pos-
session of the regal government, which was construed to remove all disabilities; this
case therefore is no argument that the statute of 13 Eliz, could not bar the right of the
Buccessof, and hinder him from succeeding, but only that if notwithstanding he should
g:et possession of the government, that possession would purge all disabilities, which is
just as much as to say, that he, who can get the power into his hands notwithstanding
an attainder or act of parliament to the contrary, will not think himself hound by such
attainder or act of parliament.
324 HISTORIA PLACITORUM CORONA.
offense, after a conviction of the former, so the second offense, tho
committed after a former, is not treason, unless it be also committed
after a former conviction: the hke method is in forgery upon tiie
statute of 5 Ellz. cap. 14. and generally that exposition holds in most
cases, where the second offense is subjected to a severer punishment
than the former, for it is intended of such offense committed after the
conviction of a former, Co. P. C. 172.
1 1, It is provided that charitable relief shall not make a party guilty
of treason ov prse7niinire,ViS an aider or abetter: this was a necessary
provision to av.oid question.
Regularly relief by victuals or clothes of a felon or of a traitor,
after lie is in custody or under bail, makes not a man an accessary
in felony, nor a principal in treason; but if he help him to
[3253 escape, that makes him an accessary in one case and a
principal in the other, Dalt. cap. 108. p. 286. ,(e) and with
this agrees this proviso in the case of high treason; but nota it ex-
tends no farther than during the time of his imprisonment, yet the
law is all. one, if he be under bail, for he is in custodid still, for the.
bail are in law his keepers, and he, that is delivered to bail in the
king's bench, is nevertheless said to be m custodid marescalli.
14 Eliz. cap. 1. "If any person do within this realm, or else-
where unlawfully, and of his own authority compass, imagine, con-
spire, practise, or devise by any ways or means with force, or by
craft maliciously and rebelliously to take, detain or keep from the
queen any of her towers, castles, fortresses or holds, or maliciously
and rebelliously take, burn or destroy them, having any of the
queen's munition in them, or being appointed to be guarded with
soldiers within the queen's dominions, and the same compassing do'
advisedly by express words or deeds utter and declare for any the
malicious or rebellious intents aforesaid, it shall be adjudged felony
in the offenders, their aiders, comforters, counsellers and abetters
without clergy.
" If any shall with force maliciously or rebelliously detain from
the queen any of her majesty's castles, towns, fortresses or holds
within any of her dominions, or any of her ships, ordinance or
artillery, or munition of war, and not render the same within six
days after proclamation, or wilfully or maliciously burn or destroy
any of her ships, or bar any of her havens, this shall be treason.'!
This act to continue during the queen's life.
We may see by this act, that the opinion of the parliament in that
time was, that this conspiring to take forts or ships by force or deceit
was not treason; but indeed the actual taking them by force was
levying of war against the king by the statute of 25 E. 3.
But if a man detains the king's town, or castle, or ships, and when
any commissionated by the king demands the same, and it is refused
to be delivered, and thereupon the king's commissioner
r 326 ]] raiseth a power, makes an assault, and they within stand
upon their guard, and repel force with force, this had been
(e) N. Edit. cap. 161. p. 531.
HISTORIA PLACITORUM CORONA. 326
treason within the statute of 25 E. 3. for it is a levying war, and so
not a bare detaining; quod vide Co. P. C. p. 10. bis in eddem
pcis^ind.
Again, if this detaining the king's castle or fort, or the castle of
any other be barely such and without assault, yet if it be in com-
pliance with a foreign enemy, or in confederacy with him, this is
treason within the act of 25 E. 3. and an overt-act of adhering to
the king's ene.mies; that therefore, which this act makes treason in
detaining after proclamation, is a simple detaining without the con-
currence of the circumstances above-mentioned, which was not trea-
son before the making of this act.
14 Eliz. cap. 2. " If any person shall conspire, imagine, or go
about unlawfully and maliciously to set at liberty any person com-
mitted by the queen's special command for any treason or suspicion
of treason concerning the person of the queen before indictment of
the person imprisoned, and such imagination or conspiracy shall set
forth, utter or declare by express words, writing, or other matter, it
shall be misprision of treasons; but if the party imprisoned be in-
dicted of any treason concerning the person of the queen, it shall
be felony so to conspire and declare such conspiracy, ut supra.
'• If it be after attainder or conviction, then such conspiracy so
declared as aforesaid shall be high treason:" this act to last during
the que€?n's life.
These things are observable upon this act, 1. Here is no provision
against the actual discharge or setting at liberty, neither needed it,
for if the party committed had really committed treason, this was
treason even within the statute of 25 E. 3. but if it were only a
commitment for treason, but no treason committed by the person in
custody, such delivery was not treason, as appears before cap. 22.
But 2. The conspiracy to do this, tho manifested by open act, was
neither treason, misprision of treason, nor felony; neither is it at
this day, but only a bare misdemeanor punishable by fine
and imprisonment, tho the party imprisoned were indicted, [ 327 ~\
yea attainted. And 3. This act extends only to such trea-
sons as concerned immediately the queen's person, not to treasons
touching her seal or coin.
And these are all the acts, that were made in the queen's time
touching treasons, which more especially related to the safety of her
person, all which expired at her death.
II. I come to those treasons, which were enacted in the queen's
time concerning coin, and they are three.
5 Eliz. cap. 11. " Makes the filing, washing, rounding, and clip-
ping of the coin of this realm, or foreign coin made current by pro-
clamation, for lucre or gain, and their counsellors, consenters, and
aiders to he high treason by virtue of this act."
14 Eliz. cap. 3. " Makes the counterfeiting of foreign coin of gold
or silver, not current within this realm, misprision of treason in the
ofienders, their procurer's, aiders and abetters."
15 Eliz. cap. 1. *' Makes the impairing, diminishing, falsifying,
VOL. I. — 32
327 HISTORIA PLACITORUM CORONA.
sealing or lightning of the coin of this kingdom or foreign coin made
current by proclamation for kicre-sake to be high treason in the
offenders, their counsellors, consenters and aiders."
But of these sufficient hath been said before in the business of
money, forfeiture and upon the statutes of 1 and 5 S,' Q E. 6. The
sum of which is this;
1. That tlie treasons made by the acts of 5 and 18 E/iz. are new
treasons, newly made by virtue of this act, and every body is estop-
ped to say the contrary by reason of the special recital and penning
of this act, viz. shall be ac/juds^ed treason by virtue of this act.
2. That the foreign coin, the clipping and impairing whereof is
made treason by this act, must be such as is made current by pro-
clamation, for it cannot be otherwise current by reason of the prohi-
bition of the statute of 17 R. 2 cap. 1. and also, the word proclama-
tion in those acts refer to foreign coin so legitimated by proclamation,
not to the proper coin of this kingdom, which needs not a proclama-
tion to legitimate it.
3. The trial and whole proceeding is to be according to
r 328 3 the course of the law by the express words of these acts and
of 1 <§' 2 P. 4' M. cap. 11. and therefore there need not two
witnesses required by the acts of 1 and the 5 S,^ 6 E. 6.
4. Not only the offenders themselves, but the counsellors, consent-
ers and aiders are within those acts; but altho regularly in case of
any old or new treason made, the comforters and receivers of the
offender are impliedly guilty of treason by a kind of necessary con-
comitance, yet it seems to me by the special peiming of this act, it
extends only to counsellors, aiders and consenters (according to the
resolution in Conner's case, Dy. 296.) as to the offenses made trea-
son by those acts, tho possibly it may be treason, as to the receiver
of a coutUerfeiter within the statute of 25 E. 3. according to my lord
Cokeys opinion, Co. P. C. cap. 64. p. 188. for that is an old treason,
and no such restriction by express words to counsellors, aiders and
assent ers.
5. The clipping and impairing, that makes treason within these
acts, must by the express words of the act he for gain or lucre, and
so laid in the indictment.
6. Counterfeiting of coin not current to bring it within a praemu-
nire by the statute of 14 Eliz. cap. 3. nutst be a counterfeiting of
such foreign coin, as is of gold or silver, or consists thereof for the
greatest part, and extends not to the foreign copper, or leather coin.
7. No corruption of blood or loss of dower are to be by attainders
of these treasons.
III. Therefore I come to the third sort of statutes made in this
queen's time, which relate to the queen's government, and especially
in relation to papal usurpation.
1 Eliz. cap. 3. is an act. of recognition of the queen to be rightful
sovereign of this realm, and all acts repugnant thereunto are repeal-
ed; and cap. 1. the oath of supremacy is enacted to be taken by the
HISTORIA PLACflTORUM CORONA. 328
persons therein described : the tenor of which oath followeth in these
words, viz.
"I t/2. B. do utterly testify and declare in my conscience, that the
queen's iiighness is the only supreme governor of this realm,
and of all other her highness's dominions and countries, as [ 329 ]
well in all spiritual or ecclesiastical things or causes, as
temporal, and that no foreign prince, person, prelate, state, or po-
tentate hath or ought to have any jurisdiction, power, superiority,
preeminence or authority, ecclesiastical or spiritual within this realm,
and therefore I do utterly renounce and forsake all foreign jurisdic-
tions, powers, superiorities and authorities, and do promise, that from
henceforth I shall bear faith and true allegiance to the queen's high-
ness, her heirs and lawful successors, and to my power shall assist
and defend all jurisdictions, privileges, preeminences and authorities
granted or belonging to the qu6en's highness, her heirs and succes-
sors, or united and annexed to the imperial crown of this realm." So
help me God and by the contents of this bool\.(/)
Every person appointed to take the oath, and refusing, shall lose
his offices and benefices, and be disabled to take any office or bene-
fice, S,'C. and then proceeds to other penalties upon refusers.
And by that act it is enacted, "That if any person inhabiting
within the queen's dominions shall by writing, printing, teaching,
preaching, express words, deed or act advisedly, maliciously, and
directly affirm, hold, stand with, set forth, maintain, or defend the
authority, preeminence, power or jurisdiction, spiritual or ecclesiasti-
cal of any foreign prince, prelate, person, state or potentate whatso-
ever, heretofore claimed, used or usurped within this realm, or any
dominion or country under the queen's obeysance,or shall advisedly,
maliciously, and directly put in ure, or execute any thing for the
extolling, advancement, setting forth, maintenance, or defence of any
such pretended or usurped jurisdiction, power, preeminence or au-
thority, or any part thereof, every person so ofiending, his abetters,
aiders, procurers and counsellors, being convicted according to the
course of the common law, shall for the first offense forfeit
his goods and chatties, and, if not worth twenty pounds, [ 330 J
shall also suffer a year's imprisonment, and all his ecclesias-
tical benefices and dignities shall be void, and for a se#&nd offense
committed after attainder of the first shall be within penalty oi prse-
munire, and for the third offense committed after his second convic-
tion, it shall be adjudged high treason."
None to be impeached for words only, unless indicted within a
year after the offense committed; and if imprisoned, to be set at
liberty, unless indicted within half a year after the offense; trial of a
peer by peers.
None to be indicted, (§'c. without two witnesses, which if living
shall be brought face to face before the prisoner upon his arraign-
ment, and testify what they can say, if the prisoner require it.
(/) This oath, and tliis statute so far as relates to the said oath, are abrogated by a
W. A- M. cap. 8.
330 HISTORIA PLACITORUM CORONiE.
Giving of relief, aid or comfort to offenders siiall not be punishable,
unless proved by two witnesses, that he had notice of the offence at
the time of such relief given.
5 Eliz. cap. 1. "If any person dwelling, inhabiting, or resiant
within the queen's dominions or under her obeysance, shall by writ-
ing, cyphering, printing, preaching, deed or act, advisedly and wit-
tingly hold, or stand with, to extol, set forth, maintain or defend the
authority, jurisdiction, or power of the bishop of jRome, or his see,
heretofore claimed, used, or usurped within this realm or any dominion
or country under the gueen's obeysance, or by speech, open act or
deed advisedly and wittingly attribute any such manner of jurisdic-
tion, authority, or preeminence to the said see or bishop of Borne for
the time being within this realm or any the queen's dominions, then
every such person, their procurers, abetters and counsellors, and also
their aiders, comforters and assistants upon the purpose aforesaid, to
extol the authority of the bishop of Rome, being lawfully convicted
within one year shall incur a prasfmoiire.
It directs who shall take, and give the oath of supremacy.
Any person appointed to take this oath by this statute or the
statute of 1 Eliz. who shall refuse to take the same, being
r 331 "] thereof lawfully indicted witliin one year, and convict or
attaint at any time after, shall incur a praemunire, 16 ^. 2.
Certificate of refusal to be made into the king's bench witliin
forty days after refusal; the king's bench may proceed to indict the
party refusing within a year by a jury of the same county, where the
court sits.
If any person convict of the offenses within the first clause of the
statute shall after conviction thereof do the said offenses or any of
them, or if any person appointed to take the oath, do after three
months after the first tender refuse to take the same being tendred a
second time, the offender shall suffer as in case of high treason.
Attainder of treason upon this act shall not make corruption of
blood, disherit the heir, or forfeit dower.
Members of the house of commons shall take the said oath, other-
wise shall be disabled to sit.
Temporal lords of parliament shall not be bound to take the bath,
nor subject*#o the penalties for ret^ising the same.
The charitable giving of reasonable alms to an offender without
fraud or covin shall not be construed an abetting, counselling, aiding^
assisting, procuring or comforting of an offender within this act:
peers indicted shall be tried by peers, as in other cases of treason.
No person compellible to take the oath upon second tender, but
such as have ecclesiastical preferments, or such as have offices in
ecclesiastical courts, or such as refuse wilfully to observe the orders
established for divine service, or such as- shall deprave the rites jtnd
ceremonies of the church of England, or that shall say or hear pri-
vate mass.
Not lawful to kill person attaint m prmmunire.
No person to be indicted for aiding, assisting, comforting, abetting
HISTORIA PLACITORUM CORONA. 331
any person for extolling the power of the bishop of Rome, unless
accused by such lawful proof, as shall be thought by the jury suffi-
cient to prove him guilty of the offence.
Tlie things observcible upon tliis act,
1. Tho the indictment for the refusal of the oath upon the first
tender may be in the county, where tlie king's bench sits, yet
the trial must be by a jury of the county where the refusal [332 ]
is, 6 <S- 7 Eliz. Dy. 234." a Bonner'' s case.
2. If books extolling the pope's jurisdiction be written beyond sea
and brought in hither, it was ruled by the advice of all the judges,
1. The importer, that delivers them out to extol the pope's authority.
2. He that reads them, and in conference with others allows them to
be good, 3. He that hears the contents, and in open speech with
otliers commend and afiirm them to be good. 4. He that hath such
books in his custody, and secretly conveys them to his friends to the
intent to perswade them to be of that opinion. 5. He that prints
such books in this realm, and utters them, are within the first clause
of this statute against extolling of papal authority; but those that
receive and read them without allowing them in cpnference, are not
within this act.
3. An indictment against an aider, ^^c. must be, knowing the prin-
cipal to be a maintainer of the jurisdiction of the pope, and contra
furmarn statuti only, is not sufficient. Dy. 363. a.
4. Nota this special clause of giving alms not to make an aider
or comforter, if the alms be reasonable, and without covin, tho the
offender not imprisoned, nor under bail, seems to be but agreeable to
the common law ; vide qnsa supra dicta sunt super statutum 1 3 Eliz.
cap. 1. and therefore it seems, even by the common law, if a physi-
cian or chirurgeon minister help to an offender sick or wounded tho
he know him to be an offender, even in treason, this makes him not
a traitor, for it is done upon the account of common humanity, not
intuitu critninis vel crirninosi ; but it will be misprision of treason,
if he know it, and do not discover him,
23 Eliz. cap. 1. "All persons' whatsoever, who have or shall have
or pretend to have power, or shall any way put in practice to ab-
solve, perswade, or withdraw any of the queen's subjects, or any
within her dominions from their natural obedience to her majesty,
or to withdraw them for that intent from the religion now by her
highness's authority established within her highness's dominions to
the Rojnish religion, or to move them or any of them to
promise any obedience to any pretended authority of the [ 333 ]
see of Rome, or of any other prince, state or potentate, to be
had or used within her dominions, or shall do any overt-act to that
intent or purpose, they shall be adjudged traitors; and the persons
who shall be willingly absolved, or withdrawn as aforesaid, or wil-
lingly reconciled, or shall promise obedience to any such pretended
authority, prince, state, or potentate as aforesaid, they, their pro-
curers and counsellors thereunto shall suffer as in case of high treason.
"Aiders and maintainers of the persons offending, knowing the
333 HISTORIA PLACITORUM CORONA.
same, or who shall conceal such offense, and not within twenty days
disclose the same to some justice of peace, S^-c. shall forfeit as in mis-
prision of treason: justices of peace to have cognisance of offenses,
except treason and misprision of treason."
Nola the words [for that intent) run througli the whole clause
of disswading from the religion of the church of England: vide
postea, statute 3 Jac. cap. 4.
The religion established within tiie meaning of this act seems to
be that book of articles mentioned and enjoined to be assented to by
all men taking orders by the statute of 13 Eliz. cap. 12.
23 Eliz. cap. 2. " Advised and malicious speakers of seditious or
scandalous tale of the queen of their own imagination shall for the
first offense be set upon the pillory, lose both ears (or at the offend-
er's election pay two hundred pounds) and suffer six months impri-
sonment.
" If any shall advisedly and with malicious intent report false,
seditious and slanderous news or tales of the queen of the reporting
of another, then to be set on the pillory and lose one of his ears
(unless he pay two hundred marks) and suffer imprisonment three
months: second offense after a first conviction shall be felony without
clergy.
" If any shall within or without the queen's dominions advisedly
and with a malicious intent against the queen devise and write, print,
or set forth any book or writing, containing any false, sedi-
[^ 334 3 tious or scandalous matter against the queen, or to the en-
couraging, stirring, or moving any insurrection or rebellion
within the realm or dominions thereof; or if any person witliin or
without the realm shall advisedly, and with a malicious intent against
the queen procure or cause any such book or writing to be written,
printed, published or set forth, (the said offense not being punishable
by the statute of 25 E. 3. concerning treason, or by any other statute,
whereby an offense is made or declared treason) every such offense
shall be judged felony without the benefit of clergy.
" If any person either within or without the queen's dominions
shall by erecting a figure, casting nativities, prophecying, witchcraft,
conjurations, or other like unlawful means seek to know, and shall
set forth by express words, deeds, or writings, how long the queen
shall live, or who shall reign after iier, or maliciously utter any direct
prophecies to that purpose, or shall maliciously by words, writings or
printing wish, will or desire the death or deprivation of the queen,
or any thing directly to the same effect, the offender, their aiders,
procurers and abetters in or to the said offenses shall suffer as felons
without the benefit of clergy."
Offenses made felony by this act committed by persons out of the
realm shall be inquired, heard and determined in the county where
the king's bench sits, and limits the proof and manner of proceeding;
no corruption of blood, loss of dower, or forfeiture of lands longer
than during life.
Two witnesses required td prove words.
HISTORIA PLACITORUM CORONiE. 334
The act of 1 4' 2 P. <§' M. and 1 Ellz. concerning scandalous
words are repealed: this act to continue only faring the queen's
life.
These things are observable upon this act,
1, There may be some words or writings, that consequentially may
be construed to stir up insurrection, and yet are not within the statute
of 25 E. 3. for this statute supposes some may be within it, and some
may not.
2. That casting the king's nativity, how long he shall live, who
shall succeed him, or using prophecies to that effect, tho
done maliciously, or wishing the king's death, was not trea- [ 335 ~\
son within the act of 25 E. 3. or of any statute then in force,
tho they are great offenses; for had they been treason, this statute
would never have made it only felony, and that only during the
queen's life.
27 Eliz. cap. 1. " If any open invasion or rebellion shall be made
within her majesty's dominions, or any act attempted tending to the
hurt of her majesty's person by or for any person, that shall or may
pretend title to the crown after the queen's death, or if any thing
shall be compassed or imagined tending to the hurt of the queen's
person by any person or with the privity of any person, that shall or
may pretend title to the crown of this realm, then by her majesty's
commission twenty-four privy counsellors and lords of parliament at
least, with the assistance of such judges of the courts of Westminster^
as the queen shall appoint, or the greater number of them, shall by
virtue of this act have authority to examine all and every the offenses
aforesaid, and all circumstances thereof, and thereupon to give sen-
tence^'br judgment, as upon good proof the matter shall appear unto
them; and after such sentence or judgment given, and declaration
thereof by her majesty's proclamation under the great seal, all such
persons, against whom such judgment or sentence shall be given or
published, shall be excluded and disabled to claim or pretend to have
any title to the crown of England.
"And all the queen's subjects may by virtue of this act and her
majesty's direction by all possible means pursue to death every sacli
wicked person, by whom such invasion or wicked act shall be at-
tempted, or other thing compassed or imagined against her majesty's
person, and all their aiders, comforters and abetters.
Provision is made in case the queen should be killed by such at-
tempt for prosecution of the offender, and exclusion of the person
offending from succession to the crown, 4'C.
Nota, this extraordinary commission was issued thus by authority
of parliament in relation to the queen of Scots, who was by virtue
thereof sentenced to death and executed.
This was but a temporary act, but the precedent of this
commission to sentence and give judgment without a trial [ 336 ]
by jury, was the first of that nature that I remember to have
been issued by parliament.
21 Eliz. cap. 2. "It shall not be lawful for any Jesuit, seminary
336 HISTORIA PLACITORUM CORONA.
priest, or other such priest, deacon, or rehgious or ecclesiastical per-
son whatsoever being born within this realm or other her highnesses
dominions, and made, ordained or professed, or to be made, ordained
or professed by any authority or jurisdiction derived, challenged or
pretended from the see of Rome by or of what name, title or degree
soever the same shall be called or known, to come into, be or remain
in any part of this realm, or any of her highness's dominions after
the end of forty days, other than in such special cases, and upon sucli
special occasions only, and for such time only, as is expressed in this
act; and if he do, then every such offense shall be high treason, and
every such person as shall wittingly and willingly receive, relieve,
comfort, aid, or maintain any such priest, Ǥ'c. being at liberty and
out of hold, knowing him to be such, shall be guilty 5f felony with-
out clergy.
" If any of the queen's subjects (not being a Jesuit, seminary
priest, deacon, or religious or ecclesiastical person) be brought up in
any college or seminary beyond sea, shall not return within six
months after proclamation in London, and within two days after his
return before tlie bishop of the diocese, or two justices of the peace
submit to her majesty's laws, and take the oath of supremacy, then
such person, who shall otherwise return into this realm or other thq
queen's dominions, shall be adjudged a traitor.
" Sending relief to any Jesuit, seminary priest, or college of priests
or Jesuits beyond the seas, or to one not returning out of such col-
lege into England, shall incur sl prsemwiire.
"Every otfense against this act shall be tried in the king's bench
in the county where it sits, or in any other county, where the otfense
was committed, or oifender apprehended.
" Jf a Jesuit, seminary priest, ^■'c. within three days after his arri-
val in the queen's dominions submit to some archbishop,
[] 337 ] bishop, or justice of peace, and take the oath of supremacy,
and by writing under his hand profess to continue obedient
to the laws, then he shall not be subject to any penalty. .
'• Trial of peers in the case of treason, felony, or praemunire to be
by peers. ' .
" Any person knowing such priest to be within the realm contrary
to this act, and not discovering it to a justice of peace, Ǥ'c. within
tv/elve days, shall be fined and imprisoned during the queen's plea-
sure, and a justice of peace to whom such discovery is made, not
informing one of the privy council, Sj-c. shall forfeit two hundred
marks.
29 Eiiz. cap. 2. " No attainder of treason that now is, where the
party is executed, shall be reversed for error.
25 Eliz. cap. 2. " A suspected Jesuit or priest refusing to answerr
directly upon his examination shall be imprisoned for his contempt,
until he shall make direct answer. . .
And these are all the acts concerning treason in the queen's time,
that I reniember, except particular acts of attainder, whereof some
are temporal, some perpetual.
HISTORIA PLACITORUM CORONiE. 337
In the time of king James, besides the particular acts touching
the treason of the conspirators of the powder-plot, and the treasons
of the lords Cohham and Gray, there are some general clauses
touching treason in the statutes of 3 Jac. cap. 4..(^') and 5. and
among ihem this special clause which enlarged the statute of 23 Eliz.
cup. 1. viz.
" If any person shall upon or beyond the seas, or in any other
place within the dominions of the king, his heirs or successors, put
in practice to absolve, perswade or withdraw any of the king's sub-
jects from their natural obedience to his majesty, his heirs or suc-
cessors, or to reconcile them to the pope or see of Rome, or to move
any of them to promise obedience to any pretended authority of the
see of Rome, or any other prince, state or potentate, then such per-
sons, their procurers, counsellors and aiders, and maintainers
knowing the same shall be adjudged traitors, and likewise [ 338 ~\
the persons willingly absolved or withdrawn. 4'C. their aiders,
abetters, maintainers, 8;c. knowing the same shall be adjudged traitors,
to be indicted and proceeded against in any county where taken, as
if the offense were committed in that county.
This act is much more strictly pen'd against such offenders, than
the statute of 23 Eliz. cap. 1, 1. It extends larger as to the place
of such offense. 2. The words {to that intent) which bound up
the statute of 23 Eliz. more strictly, are here omitted. 3. The dis-
junctive clauses in this statute have a greater latitude. 4. It extends
to maintainers of the offenders knowing the same.
Neither do I find any special new act generally touching treason
from this time till the 13th year of king Charles II.
13 Car. 2. cap. 1.
.1. "If any person after 24 Ju7ie 1661. during the king's life shall
within the realm, or without, compass, imagine, invent, devise, or
intend death or destruction, or any bodily harm tending to death or
destruction, maim, wounding, imprisonment, or restraint of the per-
son of the king, or to deprive or depose him from the style, honour,
or kingly name of the imperial crown of this realm, or of any other
his majesty':? dominions or countries, or to levy war against his
majesty within the realm, or without, or to move or stir up any
foreigner to invade this realm, or any other his majesty's dominions
being under his majesty's obeysance, and such compassings, imagi-
nations, inventions, devices, or intentions, or any of them shall ex-
press, utter, or declare by any printing, writing, preaching, or mali-
cious and advised speaking, being legally convicted thereof upon
the oath of two lawful and credible witnesses upon trial, or other-
wise convicted or attainted by due course of law, then every such
person shall be deemed a traitor, and suffer and forfeit as in cases of
high treason.
"2. If any after 24 June 1661. during his majesty's life shall ma-
ig) The oath of alligeance appointed hereby, and this statute so far as relates to the
said oath, are abrogated by 1 iV. «Sf ill. cap. 8.
338 HISTORIA PLACITORUM CORON.^.
licionsly and advisedly publish or affirm, that the king is an heretic
or papist, or endeavours to introduce popery, or maliciously and ad-
visedly by writing or speaking shall express, publish, utter
[ 339 ] or declare any words or things to incite the people to hatred
or dislike of his majesty or the established government, shall
be disabled to enjoy any office or promotion ecclesiastical, civil, or
military, or other employment, than that of peerage, and suffer such
farther punishment as may be by law inflicted.
3. "Any that shall maliciously and advisedly affirm the parlia-
ment of 3 Nov. 1640. is yet in being, or that there lies obligation
upon any by any oath, engagement or covenant to endeavour a
change of governmetit in church or state, or that both or either
house of parliament have a legislative power without the king, shall
incur the penalty of 2. prsemunire 16 R. 2.
4. No person to be prosecuted for any of, the said offenses, except
treason, but by order of the king under his sign manual, or of the
council, nor unless prosecuted within six months after the ofiense,
and indicted within three months after prosecution.
5. " None to be indicted, arraigned, convicted, or condemned of
any of the said offenses, unless the offender be accused by two law-
ful and credible witnesses upon oath, which witnesses upon his
arraignment shall be brought in person before the offender face to
face and maintain upon oath what they have to say against him,
unless the party arraigned shall willingly without violence confess
the same.
6. " This shall not deprive members of parliament of their free
debates.
" Trial by peers : peer convicted disabled to sit in parliament till
his majesty pardon him. (A)
(h) The acts relating to treason and offenses of that nature, which have passed since
our author wrote, may be reduced to these three heads; 1. Such as more immediately
relate to the king and his government. 2. Such as relate to the coin. 3. Such as relate
to the manner of trials and other proceedings.
1. As to the first, sucli as relate to the king and his government.
By 9 W. 3 cap. 1. "If any of the king's subjects, who have voluntarily gone into
France, or any the French king's dominions in Europe before 1 1 Z>ec. 1688. without
licence from the king or queen, or who have at any time during the late war with
France born arms in the service of the French king, or who have since the Ibth Febru-
ary 1688. been in arms under the command or in the service of the late king James in
Europe, shall return into this kingdom of England, or any other the king's dominions
without licence from the king under the privy seal, such person shall be adjudged guilty
of high treason. Where the offense shall be committed out of the realm, it may be
tried in any county."
r 340 1 Upon tills act these things are observable.
1. Tliat this act doth enact some treasons, which certainly were so by 25 E.3.
as bearing arms in the service of the French king during the war with France, which
is plainly an adhering to the king's enenucs ; and tho' 25 E- 3. says adhering to the
king''s enemies in the realm, yet it immediately adds giving them aid and comfort in
his realm or elsewhere, Co. F. C.p. 11. Vaughan''8 case, 2 Salk. 635. indeed all the trea-
sons by this act are compounded of this old treason, altho' they be new in form for the
sake of facilitating the proof in some instances, Hil. 2 Ann. Boucher^s case, State Tr,
Vol. V. p. 511.
2. That a pardon under the great seal (after having been in the service of the French
king and before returning) of all treasons, Sfc. will not amount to a licence to return,
HISTORIA PLACITORUM CORON.E. 340
because it is the returning, which is the treason punishable by this act. 3 Ann. Lindsay^s
case, State Tr. Vol. V. p. 528.
3. That a. Scotchman going out of Scotland into France (especially if formerly resi-
dent in England) after the time mcntiou'd in the act, and returning into England is
within the words and meaning of tlie act, even tho' he had a licence to return into
Scotland. Ilnd.
4. That a person offending against this act by returning into England may be in-
dicted in any county where he is taken, altho' it be not the first English county into
which he came. Ihid.
5. That this act is perpetual and extends to the king's successors, altho' the act speak
only of the king generally and not of his successors, according to the resolution 12 Co.
Rep. lOl). vide-siipra p. 100.
By 13 <^ 14 iy. 3. cap. 3. " The pretended prince of Wales is attainted of high trea-
son, and it is made higli treason for any of the king's subjects by letters, messages or
otherwise to hold correspondence with him or any person employed by him, or to remit
any money for his use knowing tlie same. And by the 17 Geo. 2. tliis is extended to the
pretender's son. Provides that offenses against this act committed out of the realm may
be tried in any county.
^^By 1 Ann. cap. 17. "It is made high treason to attempt by overt act or deed to de-
prive or hinder any person next in succession to the crown (according to the limitation
of the crown by 1 \V. Sf M. sess. 2 cap. 2. and 12 W. 3. cap. 2.) from succeeding after the
decease of the queen; but this succession has now happily taken place, and thereby put
an end to this statute.
By 3 <Sf 4 Ann. cap. 14. "If any subject, who has voluntarily gone into France since
4 May 1702. or into any the French king's dominions in Europe without licence from
the queen, or has since the said 4 May born arms in the service of the French king, shall
return into England without licence from the queen under her privy seal, he shall be ad.
judged guilty of high treason.
By 4 Atin. cap. 8. " It is made high treason for any one maliciously to affirm by
writing or printing, that the pretended prince of Wales, or any other person hath any
right to the crown of these realms, other than according to 1 W. Sf M, and 12 1^.3.
or that the kings of England are not able by auUiority of parliament to make laws
to bind the descent, limitation, inheritance and government of the crown. To declare
the same things by preaching, teaching or advised speaking is made a. pramunire.
This act (which is in the main transcribed from 13 Eliz. cap. 1.) was re-enacted upon
occasion ot the union 6 Ann cap. 7. Upon this statute Matthews the printer was con-
victed and executed for printing a pamphlet intituled. Vox Fopuli Vox Dei, Octob. 30. 1719.
at the Old Baily.
By 7 Ann. cap. 4. " It is high treason for any officer of the army or soldier by land
or sea to hold correspondence with any rebel or enemy to her majesty, or to treat with
such rebel or enemy without her majesty's licence.
By 7 Ann. cap. 21. " Whatever is high treason or misprision of treason in England,
(and none else) shall be high treason or misprision of treason in Scotland,
II. Such as relate to the coin.
By 8 ^ 9 W. cap. 25. •' Whoever shall knowingly make or mend, or assist in making
or mending, or shall buy or sell, or have in his possession any instruments proper for the
coinage of money, or convey such instruments out of the king's mint, or shall mark on
the edges any coin current or diminished coin of ihe kingdom, or any coun-
terfeit coin resembling the coin of the kingdom with letters or other marks f 841 |
like to those on the edges, of money coined in the king's mint, or shall colour,
gild or case over any coin resembling the current coin of the kingdom, or any round
blanks of base metal, SfC. shall be guilty of high treason. No attainder by this act shall
work corruption of blood or loss of dower, nor prosecution be for any offense against the
same, unless commenced within three months after the offense committed;" this act was
but temporary.
But by 7 Ann. cap. 25. it is made perpetual and the time of prosecution enlarged from
three months to six months after the offense committed.
Other statutes relating to the coin enacted since the edition of this book in 1736, are
the 15, 16. Geo. 2. ch. 28. concerning gilding, washing colouring, ifcc. coin; and rewards
for convicting oft'enders; and pardon to accomplices informing : — the 11 Geo. 3. ch. 40.
concerning counterfeiting halfpence and farthings. — The 13 Geo. 3. ch. 71. concerning
what is to be done with false money. — The 14 Geo. 3. ch, 92. concerning weights liar
coin.
341 HISTORIA PLACITORUM CORONA.
III. Such as relate to the manner of trials and other proceedings.
By 7. IV. 3. cap. 5. " Every person indicted for liigli treason, whereby corruption of
blood may be made, shall have a true copy of llie whole indictment, but not the names
of the witnesses, delivered to him five days before his trial, paying for it not exceeding
five shillings, and shall be admitted to make his defence by counsel, and witnesses on oath,
the said counsel not to exceed two, and to be assigned by the court, and to have access
to the prisoner at all seasonable times.
" No person shall be indicted, tried, or attainted but on the oaths of two lawful wit-
nesses, which two witnesses must be to the same treason," altho' it be not necessary they
should both be to the same overt-act.
'' No prosecution to be for any such treason unless the party be indicted within three
years alter the offense committed, unless it be for a design or attempt to assassinate
the king by poison or otherwise.
" The prisoner shall have a copy of the pannel of the jurors two days before his trial,
and shall have like process to compel the appearance of witnesses for him, as is usually
granted for witnesses against him.
"No evidence shall be given of any overt-act not expresly laid in the indictment.
" No indictment, process, «^c. shall be quashed for mis-writing mis-spelling, false or
improper Latin, unless exception be taken in court before any evidence given upon such
indictment, nor shall any such mis-writing, 8^c. be cause to stay Judgment after convic-
tion, but such judgment may nevertheless be reversed upon writ of error, as before the
making tliis act.
" In the trial of a peer or peeress all peers intitled to vote in parliament shall be sum- ,
moned twenty days before the trial, and every one so summoned and appearing shall vote
at such trial first taking the oaths to the government, ^c.
"Provided that this act shall not extend to impeachments or other proceedings in par-
liament, nor to indictments of high treason, nor any proceedings thereupon for counter-,
feiting his majesty's coin, great seal, privy seal, sign manual, or privy signet.
By 1 Ann. cap. 9. " In any trial for treason or felony the witnesses for the prisoner
shall be upon oath.
By 7 Ann. cap. 21. " After the decease of the present pretender no attainder of trea-
son shall work a disherison of the hgir, nor affect any other right, save that of the offen-
der for his natural life only, and every person indicted for high treason or misprision of
treason shall have a list of the witnesses to be produced against him oh his trial, and of
the jury, mentioning the places of their abode, ^c. given to him together with the copy
of the indictment ten days before his trial, in the presence of two credible witnesses,[i]
[1] The following are the different Acts of Parliament concerning treason that have
from time to time been passed since the 7th of Queen ylnne, recited in the note above.
By the 20 Geo. 2. c. 30. persons impeached by the House of Commons of high treason,
whereby corruption of blood shall be made, or for misprision thereof, shall be admitted to
make their full defence by two counsel, who shall be assigned for that purpose, in like
manner as upon indictments and other prosecutions.
The 30 Geo.S.c 48. alters the judgment in the case of women from burning to hanging.
By the 36 Geo. 3. c. 7. s. 1. if any person after the day of passing this act, during the
life of the king and until the end of the next session of parliament after the demise of the
crown, shall within the realm, compass, imagine, invent, devise, or intend deatli or des-
truction, or any bodily harm, tending to tiie death or destruction, maim or wounding,
imprisonment or restraint of the person of the king his heirs or successors: or to de-
prive or depose him or them from the style, honor or kingly name of the imperial crown
of this realm, or of any other of his majesty's dominions or countries; or to levy war
against his majesty, his heirs and successors, within this realm, in order by force or
constraint to compel him or them to change his or their measures or counsels; or in
order to put any force or constraint upon, or to intimidate or overawe both houses or
either house of parliament; or to move 6r stir any foreigner or stranger with force to
invade this realm, orany other his majesty's dominions or countries under the obeisance
of his majesty, his heirs and successors. And such compassings, imaginations, inven-
tions, devices, or intentions, or any of them, shall express, utter, or declare by publishing
any ])rinting or writing, or by any overt 'act or deed being legally convicted thereof
upon the oaths of two lawful witnesses upon trial, or othcrwi.se convicted or attainted by
due course of law, then every such person shall be deemed, declared, and adjudged to be a
traitor, and shall suffer the pains of death, and also lose and forfeit as in cases of high
trcaeoa. '
HISTORIA PLACITORUM CORONA. 341
By the 57 Geo. 3. c. 7. s. 1. the provisions of the last act, which relate to the heirs and
successors of tlie king-, are made perpetual.
The 39 Sf 40 Geo. 3. c. 93. and the 5 <5r 6 Vict, c. 51. take away the ri^ht of the pri-
sioner to iiave a copy of the indictment, witli a list of the witnesses and jurors in the cases
of high treason in compassing- or imagining the death or destruction or any bodily harm
tending to the death or destruction, maiming or wounding of the (jueen, and of misprision
of such treason when the overt act alleged in the indictment shall be any attempt to in-
jure her person; in which case the prisoner is triable in the same manner, and upon the
like evidence, as if charged with murder.
The 54 Geo. c. 146. alters the judgment in high treason. Seep. 351.
The 9 Geo. 4. c. 31. s. 2. abolishes petit treason, and makes tliis offence murder.^ 382.
By the 3 <^ 4 Vict. c. 52. s. 4. it is treason, in some cases for any person to aid in ob-
taining a marriage with the queen's issue under the age of eighteen, without consent of
parliament.
The 5^6 Vict. c. 51. s. 2. makes it a high misdemeanor wilfully to discharge or aim
fire arms, or to throw any offensive matter or weapon with intent to injure or alarm the
queen; with a proviso, that nothing in that act contained shall be deemed to alter in any
respect thepunishment which may by law be inflicted upon persons guilty of high trea-
son, or misprision of treason.
The 2 Will. 4. c. 34. the statute relating to the coin. It repeals all other acts touch-
ing the coin, the provisions of which it amends and consolidates into one act. See chaps.
17, 18, 19, 20.
The 11 Geo. 4. 1 Will. 4. c. 66. s. 2 ^ 1 Vict. c. 84. s. 1. repeal the statutes of treason
relating to the great seal, sign manuel, signet, SfC. to counterfeit these signatures is still
treason, though not punishable with death.
By the 29 seel, of the act of Congress of April 30, 1790, it is enacted. That any person
■who shall be accused and indicted of treason, shall have a copy of the indictment, and a
list of the jury, and witnesses to be produced on the trial .'or proving the said indictment,
mentioning the names and places of abode of such witnesses and jurors, delivered unto him
at least three entire days before he shall be tried for the same ; and in other capital offences,
shall have such copy of the indictment and list of the jury two entire days at least, before
the trial; and that every person so accused and indicted for any of the crimes aforesaid,
shall also be allowed and admitted to make his full defence by counsel learned in the
law; and the court before whom such person shall be tried, or some judge thereof shall,
and they are hereby authorized and required immediately upon his request to assign to
such person such counsel, not exceeding two, as such person shall desire, to whom such
counsel shall have free access at all seasonable hours; and every such person or persons
accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said
defence to make any proof that he or they can produce, by lawful witness or witnesses,
and shall have the like process of the court where he or they shall be tried, to compel his
or their witnesses to appear at his or their trial, as is usually granted to compel witnesses
to appear on the prosecution against them.
Sect. 30. That if any person or persons be indicted of treason against the United
States, and shall stand mute, or refuse to plead, or shall challenge peremptorily above
the number of thirty-five of the jury, the Court in any of the cases aforesaid, shall not-
yvithstanding proceed to the trial of the person or persons so standing mute or chal-
lenging, as if he or they had pleaded not guilty, and render judgment thereon accor-
dingly.
Sect. 31. That the benefit of clergy shall not be used or allowed, upon conviction of
any crime, for which by any statute of the United States the punishment is or shall be
declared to be death.
Sect.32. That no person or persons shall be prosecuted, tried or punished for treason
or other capital offence aforesaid, wilful murder, or forgery excepted, unless the indict-
ment for the same shall be found by a grand jury within three years next after the trea-
son or capital offence aforesaid shall be done or committed. Provided, that nothing
herein contained shall extend to any .person or persons fleeing from justice.
Sect. 33. That the manner of inflicting the punishment of death shall be by hanging
the person convicted by the neck until dead.
On the trial of the rebels in 1746, the prisoners had copies of their indictments five
days before their arraignment, exclusive of that d:iy and of the days copies were delivered,
and also exclusive of the intervening Sunday. Fost. 2.230. See Lord George Gordon's
Tr. 21 St. Tr. 648. Dougl. 569. An indictment for treason was found on the 1 1th of Be.
eember ; on the 12th, copies of the indictment and of the jury panel were delivered to the
341 HISTORIA PLACITORUM CORONA.
prisoner, and on the 17th a copy of the list of witnesses was delivered to him. The
prisoner was arraigned on the 31st of December and pleaded; and upon the first witness
being called for the crown, it was objected that the list of witnesses had not been
delivered according to the statute. Upon a case reserved, it was held by nine judges to
six, that the delivery of the list was not a good delivei'y in point of law ; but it was also
held by a like majority, that the objection came too late after plea pleaded. And it was
agreed by all the judges, that if the objection had been taken in due time, the only effect
of it would have been a postponement of the trial, to give time for a proper delivery of
the list. R. v. Frost,2 Mood. C. C. 140. 9 C. S( P. 129. In the case of the Insurgents,
2 Dall. 342. it was held that copies of the caption as well as of the indictment ought to
be delivered to the defendant under the Act of Congress. It was also held that the
place of abode of the jurors and witnesses should be clearly designated. The object of
the law is to enable the party accused to prepare for his defence; and to identify the
jurors who try and the witnesses who are to prove, the indictment against him. It is
contrary to tlie spirit and intent of such a provision that the whole range of the state or
of a county, should be allowed as descriptive of a place of abode. In regard to the place,
the court tliought the township in which the jurors and witnesses respectively reside,
should be specified ; but the act of Congress does not require a specification of their occu-
pations. See Dorr's Tr. 7. 1 East, P. C. 11 1. Steimrrs case, 2 Dall. 335. The 29 sect.
of the act of Congress has been construed to mean that, any person charged with a
crime in the courts of the United States, has a right before, as well as after the indict-
ment to the process of the court to compel the attendance of his witnesses. 1 Burr's
Tr. 126, •
[ 342 ] CHAPTER XXVI.
CONCERNING THE JUDGMENTS IN HIGH TREASON AND THE PARTICU-
LARS RELATING THEREUNTO, AND TO ATTAINDERS.
This chapter divides itself into these particulars: 1. Touching the
person against whom the judgment is to be given. 2. By whom it is
to be given. 3. What the form of the judgment is. 4. What the con-
sequents thereof are.
I. Touching the person, against whom a judgment in treason is to
be given.
In antient time, if a man had been slain in open war against the
king either in rebellion, or adhering to the king's enemies, the king
did de facto take a forfeiture, sometimes by presentment in Eyre^
sometimes by presentment in (he king's bench, and sometimes by
inquisition by the eschetor: for this see the whole pleading in the
chancery. Clans: 29 E. 3. M. 2. S; 4. for the coheirs of Robert de Ross
for the manor of Werk.
But in all other cases, whether of felony or treason, if the party
had died before attainder, tho he were killed in the pursuit, Claus.
26 E. 3. m. 29. pro. Ricardo filio Adse Peschall ; and //. 16 A' 1,
Rot. 27. coram regc. Sussex, pro SlepJiano Nor i hup' M. 20 4" 21
E. 1 Rot. 4 in dors, coram rege pro Johanne de Beking-
r 343 3 ham, or tho he died after conviction and before judgment,
7 //. 4. 27. a. there ensued neither attainder nor forfeiture
of lands.
But the law was practised antiently, and it seems continuing to
this day, if a traitor or a felon rescue iiimself, or will not submit to
be arrested and on resistance is slain, upon presentment thereof he
HISTORIA PLACITORUM CORONA. 343
shall forfeit his gooJs and chatties, 3 E. 3. Corone 290, 312. Co.
P. C. p. 227. for if a person be arraigned for felony or treason, tho
he be acquired, yet if it be fouijd he fled, he forfeits his goods, and
this is but in nature of a presentent oifugam fecit.
But whether that presentment be traversable, vide Stamf. P. C.
Lib. III. cap. 21.
Yet the former practice by degrees grew out of use, for in 8 E. 3.
20. a. the judges would not allow an averment, that a party died
in rebellion or adhering to the king's enemies, without a record of
his conviction, for it is possible he might be there against his will.
But now by the statute of 25 E. 3. de proditionibus, which re-
quires an attainder by conviction and attainder per gents de lour
condition that attainder after death for adhering to the king's ene-
mies is ousted.
And because it might be said, that an inquest before the eschetor
might satisfy those words, the statute of 34 E. 3. cap. 12.
hath in express terms for the future ousted such attainders f 344 3
or convictions after the parties death, at least in other cases
than of forfeitures of war, and except forfeitures of old times judged
after the parties death by presentment in Eyre, or in the king's
bench, as of felons of themselves; and therefore Jack Cade, who
was slain in open rebellion, could not be attaint but by act of parlia-
ment, and so it is recited in the act of his attainder 29 H. 6. cap. 1.
Yet after the statute of 34 E. 3. the earl of Salisbury and others,
who conspired against Henry IV. and levied war against him, and
in their flight were taken, had their heads stricken oft' by those that
apprehended them, without any judgment given against them, and
after their death judgment of treason was given against them by the
king and lords in parliament, Rot. Par. 2 H. 4 n. 30. upon which
the heir of the earl of Salisbury brought a petition of error, Rot.
Par. 2 H. 5. /;«/'/, 1. m. 13. and assigned for error among other
errors, that his ancestor was dead at the time of the judgment given
in parliament, but yet the judgment was affirmed; yet afterwards
Rot. Par. 9 H. 5. n. 19. to avoid all questions he was restored by
act of parliament.
Again, no man ought to be attainted of treason without being
called to make his defense and put to answer, which is called arre-
natio or ad rationeni positus.
Claus. 1 E. 3. part. 1. 7n. 21. dors. Thomas earl of Lancaster
was condemned to death, as a traitor by Edward II. at Poniefract,
Henry his brother brought a petition of error in the parliament of
1 ^. 3, upon that judgment, the record was removed in these words.
" Placita coronae coram domino Edwardo rege filio domini regis
Edwardi tenta in prassentia ipsius domini regis apud Pontem-fractuni
die lunse proxime ante festuni aimunciationis beatas Marise virginis
anno regni sui quintodecimo.
*' Cum Thomas comes Lancastriag caplus pro proditionibus, homi-
cidiis, incendiis, depredationibus, & aliis diversis feioniis ductus esset
coram ipso domino rege, prasentibus Edmundo comite Kani^^
344 HISTORIA PLACITORUM CORONA.
Johanne comite Richemund\ Aclomaro de Valencia comite Pern-
hroch\ Johanne de Warennd com' Surr\ Edmundo com'
\_ 345 ] Arundell\ David com' Al^ol, Roberto comite de Jinegos,
baronibus & aliis magnatibus regni, dominus rex recordatur,
quod idem Thomna homo ligens ipsius domini regis venit apud
Burton super Trentam simul cum Humfr^o de Bohiin nuper com'
Herep, proditore regis & regni invento cum vexillis explicatis apud
Pontem Burgi in bello conlra dominum regern, & ibidem interfecto,
& Kogero Damory proditore adjudicafo, & quibusdam aiiis prodito-
ribus & inimicis regis & regni cum vexillis explicatis, & ut de guerrS
hostiliter resistebat <§• impedivit ipsum dominum regem & homines
& familiares suos per tres dies continuos, quo minus pontem dictae
villas de Burton transire potuerunt, &c. — Et unde dominus rex,
habito respectii ad tanta dicti Thomx comitis facinora, & iniquitates
ejus, & ejus maximam ingratitudinem, nullam habnit causam ad
aliquam gratiam eidem Thomse comiti de poenis prasdictis super
ipsum adjudicatis pardonand' in prsemissis faciend', quia tamen idem
Thomas comes de parentela excellenti & nobilissima procreatus est,
dominus rex ob reverentiam dictae parentelas remittit de gratia suei
speciali praedicto Thomse comit executionem duarum poenarum ad
judicatarum, sicut praedictum est, scilicet quod idem Thomas comes
non trahatur, neque suspendatur, sed quod .executio tantummodo
fiat super ipsum Thomam comitem, quod decapitetur.
"Thereupon the record being read in praesentia domini regis pro-
cerum & magnatum regni & aliorum in hoc parliamento, he assigned
these errors: 1. Quod erratum est in hoc, quod cum quicunque homo
ligeus domini regis pro seditionibus, homicidiis, robberiis, incendiis &
aliis feloniis tempore pacis captus, & in quacunque curia regis ductus
fuerit, de hujusmodi seditionibus & aliis feloniis sibi impositis, per
legem & consuetudinem regni arrenari debet, & ad responsionem
poni, & inde per legem &c. convinci, antequam fuerit morii adjudica-
tus; licet prasdictus Thomas comes, homo ligeus praedicti domini regis
patris, &c. tempore pacis captus, & coram ipso rege ductus fuit, dictus
dominus rex pater, &c. recordabatur ipsum Thomam esse culpabilem
de seditionibus and feloniis in praedictis recordo & processu
[ 346 ] contentis, absque hoc, quod ipsum inde arrenavit seu ad re-
sponsionem posiiit, prout moris est secundum legem, &c.
& sic absque arrenamento & responsione idem Thomas erronic^, &
contra legem terrjB tempore pacis morti extitit adjudicatus, unde cum
notorium sit & manifestum, quod totum tempus, quo impositum fuit
eidem comiti pra^dicta mala & facinora in prasdictis recordo & pro-
cessu contenta fccisse, & etiain tempus, quo captus fuit, & quo dictus
dominus rex pater recordabatur ipsum esse culpabilerii, &c. &, quo
morti extitit adjudicatus, fuit tempus pacis, maxime cum per totum
tempus praedictum cancellaria & -aliae placeae curiae domini regis
apertcu fuerunt, & in quibus lex cuicunque fiebat, prout fieri consue-
vit, nee idem dominus rex unquam in tempore illo cum vexillis ex-
plicatis equitabat, pruidictus doinimis rex pater, &c. in hujusmodi
tempore pacis contra ipsum comitem sic recordari non debuit, nee
HISTORIA PLACITORUM CORONiE. 346
ipsnm sine arrenamento & responsione morti adjadicasse. Dicit
etiam, 2. Qnod erratum est in hoc, quod cum praidictus Thomas
comes fuisset unus parium & magnatCun regni, & in Magna Carta de
libertatibus Jlnglhe contineatur, quod nuUus liber homo capiatur,
imprisonetur, ant disseisietur de lihero tenemenlo suo, vel liberta-
tibus^ seu liberis consuetiidinibus stn's, aut ittlagetiir, aut exulet,
nee aliquo m.odo destritatitr, nee dominus rex super eum ibit, nee
super eum miftet, nisi per legale judicium parium suorum, vel per _
legem terrx, prasdictus Thomas comes per recordum regis, ut prse-
dictum est, tempore pacis erronice morti fuit adjudicatus absque
arrenamento seu responsione, seu legali judicio parium suorum, con-
tra legem, &c. & contra tenorem Magnae Cartse prsedictge: and there-
fore, as brother and heir of Thomas, prays that the judgment be
annulled, and he restored to his inheritance, & quia inspectis & ple-
nius intellectis recordo & processu praedictis, &c. ob errores praedictos
& alios in eisdem recordo & processu compertos consideratum est per
ipsum dominum regem, proceres, magnates & totam communitatem
regni in eodem parliamento, quod prsedictum judicium contra pree-
dictum Thomam comitem redditum tanquam erroneum, re-
vocetur & adnulletur, & quod praedictus Henricus, ut frater [ 347 ]j
& hagres ejusdem Thomse comitis, ad hasreditatem suam
petendam & habend' debito processu inde faciend', prout moris est,
admittatur, & habeat brevia cancellariae, & quod justic', in quorum
placeis dicta recordum & processus irrotulantur, eadem recordum «&
processus irritari faciunt & adnullari, &c. P. 15 E. 2. B. R. Rot. 69.
&r Pasch. 39 E. 3. Rot. 49. coram Rege.
This notable record, even before the statute of 25 E. 3. gives us
an account of these things: 1. That in time of peace no man ought
to be adjudged to death for treason, or any other offense without
being arraigned and put to answer. 2. That regularly, when the
king's courts are open, it is a time of peace in judgment of law.
3. That no man ought to be sentenced to death by the record of the
king without his legal \na.\ per pares. 4. That in this particular case
the commons, as well as the king and lords, gave judgment of the
reversal.
John Matravers was attainted of treason in the parliament of
4 E. 3. n. 3. for the death of the earl of Kent, as hath been before
shewn, cap. ll.p. 82. in his absence, Rot. Par. 21 E. 3. n. 65. dors.
the same John Matravers sued in parliament to reverse that judg-
ment, and assigned for error, qilest adjudge a m.ort in iin parlement
tenus a Westminster en /' absence de lui, nient indite, nient arayne,
ne appell a respons, countre le ley de realm <§• les usages approves;
he did not prevail in that parliament but Rot. Par. 25 E. 3. n. 54
4' 55. he had a restitution by the king confirmed in parliament.
Roger Mortimer eai\ of Alar ch was condemned for treason for the
death of king Edward II. Rot. Par. 4 E. 3. n. 1. his cousin and heir
Roger Mortimer, Rot. Par. 28 E. 3. n. 9 <§• 10. brought a petition
of error upon that judgment, whereupon the record of his attainder
VOL. I. — 33
347 HISTORIA PLACITORUM CORONA.
was removed into parliament, and there entred of record, and errors
assigned; the judgment of reversal is thereupon given in this form.
" Les queux record & judgment lues & examine in plein parlement
le dit Roger cosin & heyre de dit counte dit & alledge, qe les record &
judgment susdit sont erroynes & defective in touts points, &
r348 ] nosment en tant come le dil counte estoit myse a mort & dis-
herite sans nul accusement &sans estre mesne en judgment,
ou en respons,dont il prie,qe les record & judgment avant dits soient
revers and adnulls,& sur ceo ove bone deliberation ed avise ed grant
leisure per nostra dit seigneur le roy, prelates, prince, & dues, countes,
& barons avant dit, il peirt clereraent, qe mesmes les judgment &
records sont erroynes & defectives en touts points, par quoi nostredit
seigneur le roy & les dits prelates, prince, dues, countes, & barons
par ^cord des chivalers des countes & des commons repellent, &
anyetitissent, & pur erroyn & irrit adjuggent les records & judgment
susdits," and restore Roger the petitioner to the title of earl of March,
and to the lands, 4'C. of his grandfather.
But if the party accused declined his appearance, it is true then,
that the law of the land is, that he should be proceeded against to an
outlawry, and may thereby be attainted by process of outlawry with-
out answer, for he declines it by his own default.
And sometimes there was a more compendious way, namely, the
issuing of a proclamation-writ to appear in a month, two, or three in
the court of king's-bench, or that in default thereof the party should
be attainted of treason or such other oftense, wherewith he was
charged; and this was frequently done by act of parliament in par-
ticular cases, not unlike the process enacted in case of an assault upon
a member of parliament by the statute of 5 H. 4. cap. 6. and 11 H.Q.
cap. 11.
Sometimes the lords house did make such a direction, as in the case
of Talbot, Rot. Par. 17 R. 2. mention'd before,;??. 265. but it could
not be effectual to attaint the party upon his default of appearance
upon the return of proclamation without act of parliament, or process
of outlawry. [1]
Again, as a man could not be attainted of treason without arraign-
[1] By Art. 1. Sect. 9. of the Constitution of the United States, no Bill of Attainder,
or ex post facto law shall be passed. The same provision may be found in the Consti-
tutions of Maine, Vermont, Connecticut, New Jersey, Pennsylvania, Maryland, South Ca-
rolina, Mississippi, Alabama, Sf Mickiiran. Before the Articles of Confederation were ,
ajjrccd to, Congress had recommended to the several States to confiscate, as soon as
jniffht be, and to make sale of all the real and personal estates therein, of their inhabi-
tants, and otlier i)ersons vvlio had forfeited the same, and the right to protection of their
respective States. In consequence of this recommendation, several of the States passed
acts to confiscate the estates of persons inimical to the independence and liberties of the
United States within such States. 1 />«//. .53. 401. During the revolutionary war, says
Mr. Justice Story, bills of attainder were passed to a wide extent; and the evils resulting'
therefrom", were supposed, in times of more cool reflection, to have far outweiglied any
imagined good. I'he injustice and inifiiiity of such acts, in general, constitute an irre-
sistible argument against the existence of the power. In a lice government it would be
intolerable; and in the hands of a reigning (action, it might bo, and possibly would be,
abused to the ruin and death of the most virtuous citizens. Story on Const. 211. 239.
HISTORIA PLACITORUM CORON.E. 343
ment, if present, or process of outlawry, if absent, so neither could
he be arraigned without an accusation; and this accusation was of
three kinds: 1. If he were taken with the mainouer. 2. By way of
appeal. 3. By way of indictment.
1. In antient time, sometimes as well in case of treason,
as in case of felony a man, that was taken cum maun opere, f 349 1
was thereupon arraigned, an instance we have thereof, T. 10.
E. 2. Rot. 132. Bucks cited before;;?. 186.
But this is wholly disused and ousted by the statutes of 5 E. 3.
cap. 9. and 25 E. 3. cop. 4. by which statutes none shall be put to
answer without indictment or presentment of good and lawful men
of the neighbourhood.
2. By appeal, and this was usual at common law, as appears by
Britton, cap. 22. but this kind of proceeding by appeal in the king's
ordinary courts in cases of treason hath been long disused, and it
seems is wholly taken away by the statutes of 5 and 25 E. 3. above-
mentioned.[2]
But yet notwithstanding that course of appeal continued still in
parliament, as appears by several instances, especially in the great
appeal of treason by the lords appellants in 11 and 21 ^. 2.,{d) but
by the statute of 1 H. 4. cap. 14. all appeals in parliament are wholly
taken away, and accordingly upon reference to the judges upon the
impeachment made in the lord's house by the earl o{ Bristol against
the earl of Clarendon in the present parliament, it was resolved and
reported by all the judges.(e)
But yet that statute hath not taken away impeachments by the
house of commons in cases of treason or other misdemeanors, and
therefore tho' since 1 H. 4. cap. 14. all appeals of treason by par-
ticular persons are taken away, and have been wholly disused, yet
impeachments by the commons have been ever since very frequently
used, because they are rather in the nature of grand indictments, than
appeals.
3. By way of indictment, this is the regular and legal way of pro-
ceeding in case of treason.
And thus far for the persons against whom judgment of treason
may be given, and the manner of deducing them unto judgment.
II. As touching the persons, by whom judgment of treason may
be given; this concerns more especially the jurisdiction of courts: a
word touching it,
1. Justices of peace cannot regularly arraign, try or give
judgment in case of treason, unless in such cases, as are by [SSO]
special act of parliament committed to their cognizance, as
(rf) state Tr.Vol. I. p. 4. (e) State Tr. Vol. II. p. 552.
[2] In 1631 there was a trial by battle awarded in the court of chivalry, on an appeal
of treason beyond the seas. Lord Rea v. David Ramsey, Rushworth, vol. 2. part. 2. p. 112.
But it is expressly taken away by the 59 Geo. 3. c. 46. which enacts, that it shall thence.
forth not be lawful for any person to sue an appeal for treason, murder, felony, or other
offence. This act was occasioned by Thornton's case. 1 B. Sf Aid. 405.
350 HISTORIA PLACITORUM CORONA.
26 H. 8. cap. 6. 5 Eliz. cap. 1.13 Eliz. cap. 2. 23 Eliz. cap. 1. and
some others, because their commission extends not to it, yet they may
take examinations touching treason in order to the discovery thereof
and preservation of the peace.
2. Justices of or/er and terminer may give- judgment in case of
high treason, for it is expressly witliin their commission.
3. Justices of goal-dehvery may give judgment in case of treason
on any person in prison before them, and that is proved by the sta-
tute of 1 E. 6. cap. 7. and by the constant practice.
4. Justices of Nisi prius may give judgment in case of treason by
the statute of 14 H. 6. cap. 1. but quxre, whether it be barely by
force of that commission, or whether it must be by virtue of some
other commission.
5. Justices of the king's bench in the court of king's bench may
give judgment in case of treason, for it is the highest court of ordi-
nary justice, especially in criminals.
6. If a peer be indicted and plead not guilty to his indictment,
and is tried by his peers and found guilty, the lord steward com-
missionated by the king for that office gives the judgment, and
orders execution.
7. If a peer be tried in parliament by the lords, they usually elect
a person to be lord steward to gather up their votes and pronounce
the judgment, but for the most part that steward so elected, tho in
parliament, is commissionated by the king under his great seal ; but
of this more hereafter.
III. I come to the form of the judgment.
The judgments in case of treason are of two kinds, viz. the solemn
and severe judgment, and the less.
The solemn or severe judgment against a man convict of high
treason is set down, Co. P. C.p. 210. Stamf. Lib. III. cap. 19,(/)
1 H. 1. 24. a Stafford's case 4' alibi, " Et super hoc visis & per
curiam hie intellectis omnibus & singulis prsemissis consideratum est,
1. Quod praedictus R. usque furcas T. trahatur.[3] 2. Ibi-
r 351 ]] dem supendatur per collum, & vivus ad terram prosternatur.
3. Interiora sua extra Ventrem suum capiantur. 4. Ipsoque
vivente(,g-) comburantur, & 5. Caput suum amputelur. 6. Qiiodque
corpus suum in quatuor partes dividatur. 7. Et quod caput & quar-
teria ilia ponantur, ubi dominus rex ea assignare voluerit.[4]
(/)p. 182.fl.
{g) These words are so material, that the judgment was reversed for want of them in
the case of Walcot. 35 Cor, 2. Show.^Ca. Pari. 127. 1 Sulk. 632.
[3] Tiie "drawinjr" in the judsrmcnt for treason, was performed by tying the culprit's
feet to the horse's tail and drag^irig- liirn along the ground. Luders. 151.
[4] By tlie 54 Oeo. 3. c. 14G. untitled, "An act to alter the punishment in certain
cases of high treason," after reciting the judgment formerly required by the law in high
treason, it is enacted, " 'i'hat in all cases of high treason, in which, as the law now
stands, the sentence or judgment ordained by law is as aforesaid, the sentence or judg-
ment to he pronounced or awarded, from and after the passing of this act, against any
person convicted or adjudged guilty, shall be, that such ])erson shall be drawn on a
hurdle to the place of execution, and be there hanged by the neck until such person b&
HISTORIA PLACITORUM CORONA. 351
The king may and often doth discharge or pardon all the punish-
ment, except beheading, and in as much as that is part of this judg-
ment, it may be executed by the king's special command, tho the
rest be omitted.
In the case of a woman her judgment is to be drawn and burnt,
as well in high treason, as petit treason, and she is neither hanged
nor beheaded. [5]
The less solemn judgment is only to he drawn and hanged, and
this is regularly the judgment in case of counterfeiting the coin of
this kingdom, for that was the judgment in that case at common
law, which was not altered by the statute of 25 E. 3. viz. " Super
quo visis, &c. consideratum est, quod B. usque furcas de T. trahatur,
& ibidem suspendatur per collum, quousque mortuus fuerit."
But the judgment in that case also for a woman is to be drawn and
burnt, 25 E. 3. 85. h.
And it seems the same judgment was also for importing counter-
feit coin, and yet that was not treason at common law.
And the same judgment was for counterfeiting the great or privy
seal at common law, as may be easily gathered out of Bracton,
Lib. III. de Corona, cap. 3. but expressly by Fleta, Lib. I. cap. 22.
Crimen falsi dicitur, cum quis accusatus fnerit quod sigillum regis,
vel appellatus, quod sigillum domini sui de cujus familia fuerit, faisa-
verit, & brevia inde consignaverit, vel cartam aliquam vel literam
ad exhacredationem domini vel alterius damnum sic sigillaverit, &
-quibns casibus, si quis inde convictus fuerit, detractari meruit & sus-
pends
And accordingly the like judgment hath been given, as in case
of petit treason, for counterfeiting the great seal after the
statute of 25 E. 3. as appears by 2 H. 4. 25. and the record [ 352 ]
is accordingly ;(A) and tho it is true my lord Coke saith, it is
a mistake Co. P. C. p. 15. yet I rather think it was a mistake in my
lord Coke, and that the judgment may be given either way, viz, dis-
(Ji) Vide supra in nolis p. 181.
dead ; and that afterwards the head shall be severed from the body of such person, and
the body divided into four quarters, shall be disposed of as his majesty and his suc-
cessors shall think fit."
Sect. 2. enacts, that the kingf, after judgment pronounced may, by warrant under his
sign manual, countersigned by one of the principal secretaries of state, declare it to be
his pleasure, and may order and direct that such person shall not be drawn, but shall be
taken in such manner as in the said warrant shall be expressed, to the place of execu-
tion, and that such person shall not be hanged by the neck, but in stead thereof the
head shall be there severed from the body of such person whilst alive, and in such war-
rant may direct and order how and in what manner the body, head, and quarters of
such person shall be disposed of, and it shall be lawful for the sheriff or other person to
"whom such warrant shall be directed and whom it shall concern, to carry the same into
execution accordingly.
By the 33d Sect, of the act of Congress of April 30, 1790, the manner of in-
flicting the punishment of death shall be by hanging the person convicted by the neck
until dead.
[5] But now by the 30 Geo. 3. c. 48. women are to be drawn to the place of execution
and hanged.
352 HISTORIA PLACITORUM CORONA.
trahalur «§• suspendatur, or distrahatur, suspendalur <§' decapi-
tetur.
Ill the case(/) 16 Jac. for counterfeiting the privy signet, which
was made treason by the statute of 1 Mar. cap. 6. the judgment
was the great and solemn judgment of drawing, hanging and quar-
tering.
But suppose the judgment were so in case of counterfeiting the
seal, great or privy, yet the question is whether the same judgment
must be in those new treasons enacted by 1 <5' 2 P. <§• M. cap. 11.
for counterfeiting foreign coin made current by proclamation, and
also npon the statutes of 5 Eliz. and 18 Eliz. for clipping and wash-
ing, whether must they have the solemn judgment to be hanged
and quartered, or only the judgment of petit treason to be drawn
and hanged.
And herein by Stamf. Lib. Ill, cap. \9.{k) and Co. P. C. p. 17.
the judgment is to be the solemn judgment, and not the judgment to
be drawn and hanged, because it is a new treason made by act of
parliament, and therefore must have the solemnity of the great judg-
ment in case of high treason.
And surely this is regularly true, and therefore in the case of
popish priests, and those other acts of treason newly enacted in the
queen's time, the judgment is to be drawn, hanged and quartered;
but it seems to me, that the law is otherwise in relation to those new
treasons enacted in the time of queen Mary and queen Elizabeth
relating to coin, and that in all those cases the judgment at least may
be only to be drawn and hanged; and my reasons are, 1, Because
they are in co^nata materia falsijicalionis monetve, and therefore
tho they are made treason, yet they are within the verge of the crime
of falsification of money, and are to be under the same punishment.
2. It were unreasonable to think, that the parliament should make
the counterfeiting of foreign coin to have a greater kind of punish-
ment, than the counterfeiting of the coin of this kingdom,
[ 353 ] or that clipping English or foreign coin should have a
greater punishment, than counterfeiting of the coin of tliis
kingdom. 3. As the statute of 25 E. 3. tho it declares as well coun-
terteiting of money as levying of war to be high treason, yet leaves
them under the several degrees of punishments proportionable to their
nature, and what they had before, so tho these statutes make those
to be new treasons, that were not before, yet in as much as the pun-
ishments of treasons were not equal, but tliat concerning coin was a
punishment of a lower allay, therefore the subject matter of those
acts shall govern the degree of their punishment accordiiag to that
punishment of treason, that relates to coin. 4. And accordingly in
the book of T. 6 Eliz. By. 230. b. it is agreed by the justices, that
the punishment pro tonsiird monetve. is only to be drawn and hanged,
and upon a strict search into the precedents of Ae^^j^a/e from 5 Eliz.
downwards, tho some judgments for clipping be the solemn judg-
ments, yet the most and latest are only to be drawn and hanged, and
(i) Robinson's case, 2 Kol. Rep. 50. (Jc) p. 182. b.
HISTORIA PLACITORUM CORONA. 353
accordingly it was resolved and done upon great deliberation lately
in the king's bench upon the conviction of two Frenchmen for clip-
ping of the king's coin.(/)
But however it seems, that the judgment either of one kind or the
other seems not to be erroneous, for hanging and drawing is part of
the solemn judgment, and tho either may be perchance warrantable
enough, yet certainly the judgment of petit treason in all treasons
touching coin is the most warrantable and safe. [6]
IV. I come to consider of the consequents of a judgment in treason.
If the judgment be given by him, that hath authority, and it be
erroneous, it was at common law reversible by writ of error; only
the statute of 29 Eliz. cap. 2. secures all former attainders, where
the party is executed, from reversal by writ of error, but meddles
not with other attainders, neither doth the statute of 33 H. 8.
cap. 20. take away writs of error upon attainder of treason, as hath,
been resolved against the opinion of Stamf. P. C. Lib. III. cap.
\9.{m) Co. P. C.p. 31.
But it is true, that the statutes of 26 H. 8. cap. 13. and
5 8f Q E. 6. cap. 11, take away from a person outlawed in [ 354 ~\
treason the advantage of reversal of an outlawry, because
the party outlawed was out of the realm, but extends not to other
offenses.
The consequents of a judgment in treason are, 1. Corruption of
blood of the party attaint. 2. Loss of dower to his wife. 3. For-
feiture to the king of all his lands, goods and chatties. 4. Execution,
whereof in the next chapter.[7]
CHAPTER XXVII.
TOUCHING CORRUPTION OF BLOOD AND RESTITUTIONS THEREOF, LOSS
OF DOWER, FORFEITURE OF GOODS, AND EXECUTION.
The consequence of the judgment in high treason, petit treason, or
felony, is corruption of blood of the party attaint ; unless it be in such
special treasons or felonies enacted by parliament, wherein it is espe-
cially provided, that the attainder thereof shall make no corruption
of blood, as upon the statutes of 5 and 18 Eliz. in treason for clip-
ping and washing of coin; and upon the statutes of 21 Juc. cap. 2G.
for acknowledging a recognizance, S^c. in another's name, 1 Jac.
Ctf/7. 11. for bigamy, and many others. • ,
\{l) The cdise oi Bellew and Norman, Raym. 234. 1 Ventr. 254. (jn) p. 182. b.
,[6] The 2 Will. 4. c. 34. abolishes the punishment of death in ail cases of offences
rekting to the coin. By the 3 sect, the counterfeiting the gold and silver coin is pun-
ishcd, at the discretion of tiie court, by transportation for life, or for seven years, or
imprisonment not exceeding four years. The subsequent sections provide for the pun-
ishment of the several other offences of this nature.
[7] For the learning relating to the judgment in high treason, see Luders' Tracts, 149.
1 East, P. C. 137.
354 HISTORIA PLACITORUM CORONJE.
If a man be attaint of piracy before commissioners of oyer and ter-
miner grounded upon the statute of 28 H. 8. cap, 15. by indictment
and verdict of twelve men according to the course of the common
law, he forfeits his lands and goods by the statute of 28 H. 8. cup. 15.
but this works no corruption of blood, because it is an offense where-
of the common law takes no notice, and tho it be enacted,
[ 355 3 they shall suffer and forfeit as in case of felony, yet it alters
not the offense, Co. P. C. cap. 49. p. 112. vide iamen con-
tra Co. Litt. § 145. p. 391.
If a man be attainted before the admiraKof treason or felony com-
mitted upon the sea, or before the constable and marshal for treason
or murder committed beyond the sea, according to the course of the
civil law, it works no corruption of blood, for tho these offenses
within the cognizance of the common law are felonies or treasons,
yet the manner of the trial being according to the course of the civil
law, the judgment thereupon, tho capital, corrupts not the blood.
If there be an attainder of treason or felony done upon the sea
upon this statute of 28 H. 8. by jury, according to the course of the
common law, it seems that the judgment thereupon works a corrup-
tion of blood, because the commission itself is under the great seal
warranted by act of parliament, and the trial is according to the course
of the common law, and therefore the proceeding and judgment
thereupon is of the same effect, as an attainder of foreign treason by
commission upon the statute of 35 H. 8. cap. 2. or any other attain-
der by course of the common law, and with this agrees Co. Litt.
§ 745. p. 391. nay, I think farther, that if the indictment of piracy
before such commissioners upon the statute of 28 H. 8. be formed as
an indictment of robbery at common law, viz. vi %■ armis Sffelunic^y
^■c. that he might be thereupon attainted, and the blood corrupted;
for whatever any say to the contrary, it is out of question, that piracy
upon the statute is robbery, and the offenders have been indicted,
convicted, and executed for it in the king's bench, as for a robbery,
as I have elsewhere made it evident.
But indeed, if the indictment before these commissioners run only
according to the style of the civil law, viz. piralicl deprxdavit, then
the attainder thereupon upon the statute of 28 //. 8. though it gives
the forfeiture of lands and goods, corrupts not the blood, and so are
those two books of the same author, Co. P. C. cap. 49. and Co. Litt.
§ 745. to be reconciled, which without this diversity would be con-
tradictory: vide H. 13. Car. B. R. Ililliar 6,- Moore.
By the statute of Westminster 2. de dunis conditionalibus,
[ 356 3 if tenant in tail be attaint of felony or treason, there is no
corruption of blood wrought as to the issue in tail, because
the very blood as well as the land, is entailed, and yet for the advan-
tage of the issue there is a corruption of blood, as if the tenant in tail
alien with the warranty and assets, and then is attainted, the lien of
the warranty is gone, for that lien was not entailed. Litt. § 747. but
if the warranty were annexed to the gift in tail, the attainder of the
donee doth not destroy the warranty to the issue, for the warranty is
entailed.
HISTORIA PLACITORUM CORONA. 356
The statutes of 26 and 33 H. 8. subject estates-tail to forfeiture by
attainder of treason, and so the law stands at this day, notwithstand-
in£^ the statutes of 1 E. 6. and 1 Mar. whereof before. [1]
But yet these acts are not absolutely a repeal of the statute of donis
coridilionalihus, lor notwithstanding the forfeiture of the lands en-
tailed by the attainder, yet the blood is not corrupted as to the issue
in tail.
And therefore if the son of the donee in tail be attainted of treason
in the life of the father, and dies having issue, and then the father
dies, the estate shall descend to the grandchild, notwithstanding the
father's atiamder; but otherwise it would have been in case of a
fee-simj)le. 3 Co. Rep. Dowtie^s case, 10 b.
In all cases (but only in cases of entails as before) attainder of
treason or felony corrupts the blood upward and downward, so that
no person that must make his derivation of descent to, or through the
parties attaint, can inherit, as if there be grandfather, father, and son,
the father is attainted, and dies in the life of the grandfather, the sou
cannot inherit the grandfather.(«)
In cases of collateral descents of lands in fee simple, if there be
father and two sons, and the eldest is attainted in the life of the father,
and dies without issue in the life of the father, the younger son shall
inherit the father, for he needs not mention his elder brother in the
conveying of his title; but if the elder son attaint survive the father
but a day, and die without issue, the second son cannot in-
herit, but the land shall eschete yjro defectu haeredis, for the [ 357 ]]
corruption of blood in the elder son surviving the father im-
pedes the descent. 31 E. 1. Barr. 315.
But otherwise it is in case the eldest son had been an alien nee,{or
then notwithstanding such son alien were living, the land will des-
cend from the father to the youngest son born a denizen.
If a man hath two sons and then is attaint of treason or felony, the
elder son purchaseth land and dies without issue, either in the life-
time or after the death of the father, the attainder of the father is no
impediment of the descent from the brother to the brother. Sir Philip
Hobby's case, Co. Litt. 8.
And the same law is in case the father were first attaint, and then
had issue two sons, the elder purchases lands in fee simple and dies
without issue, the younger shall inherit, for tho both derive their
blood from the father, yet the descent from the brother to the bro-
ther is immediate, and is not impeached by the attainder of the father,
this tho made a doubt, Co. Lilt. p. S. yet was agreed generally by
the judges in the exchequer-chamber in the case of the earl of Hol-
derness.{b)
■ (a) Dyer 274.
(i) P. 16 Car. 2. reported by the name of Collingwood and Pace, 1 Sid. 193. 1 Yen. 413.
[1] Tenant in tail attainted of treason by the act of the legislature o? New Jersey of
the 11th December, 1778, forfeits his lite estate only. Denn ex dein. Hinchman v.
Clark et al. Coxe's Rep. 340.
357 HISTORIA PLACITORUM CORON.^.
But if there be two brothers, the elder is attaint and have issue,
and dies in the hfe of the youns^er^and then the younger die without
issue, the lands in fee-simple of the younger shall not descend to the
nephew, for the attainder of his father is an impediment to the deri-
vation of his descent.
And accordingly it is, if the son of the person attaint purchases
lands and dies without issue, it shall not descend to his uncle, for the
attainder of his father corrupted his blood, whereby the bridge is
broken between the nephew and uncle, and the one cannot inlierit
the other, but the land shall eschete pro defectn hxredis: vide ac-
cordant ruled in Courtney\<i case infra Co. P. C. p 241 [2]
Thus far for corruption of blood. [3]
[ 358 ] Touching restitutions in blood they are of two kinds, by
pardon, and by act of parliament.
The king's pardon, tho it doth not restore the blood, yet as to
issues born after it hath the etTect of a restitution.
t/i. hath issue B. a son, and then is attaint of treason or felony, and
then is pardoned and purchaseth land in fee simple, and then hath
issue C. if i/^. dies, and B. survives, and after dies without issue, yet
the land shall eschete pro defeciu hseredis, for the pardon restores
not the blood between Ji. and B. that was born before; but if B. had
died without issue in the life of .^. and then A. had died, the land
should descend to C. because he was not in being while his father's
attainder stood in force, but was born after the purging of the crime
and punishment by the pardon, Co. Lift. § 747.
But restitution of blood in its true nature and extent can only be
by act of Parliament.
Restitutions by parliament are of two kinds, one a restitution only
in blood, which only removes the corruption thereof, but restores
not to the party attaint or his heirs the manors or honours lost by
the attainder, unless it specially extend to it; the other is a gene-
ral restitution not only in blood, but to the lands, Ǥ'c. of the party
attaint.
A restitution in blood may be special and qualified, but generally
a restitution in blood is construed liberally and extensively.
Jl. hath issue B. a son, and is attaint of treason and dies, B. pur-
chaseth land in fee simple, B. by parliament is restored only in
blood, and enabled as well as heir to ^. as to all other collateral and
lineal ancestors, provided it shall not restore B. to any of the lands of
td. forfeited by the attainder, B. dies without issue; it was ruled, that
[2] At common law the curtsey estate of the husband is not forfeited to the common-
wealth by his attainder of treason, committed in the lifetime of the wife and after issue
born; but on tiie death of the wife the estate passes to her heir or devisee discharjfcd of
the curtsey. I'emberton v. flicks, 1 Ihnn. 1. S. C. 3 Dull. 47!). 4 id. 168. The widow of
a man who was banished from the State of South Carolina, and wiiose estate was confis-
cated by an act of the Icfrisiature of 1782, for adhering- to the British in tiie course of
the revolutionary war, was licld to be entitled to her dower in all his lands. Wills v. Mar-
tin, 2 Bay Kep. 20.
[3] Corruplion of blood is now only peculiar to treason and murder, being abolished in
other cases, by the 54 Geo, 3. c. 145.
HISTORIA PLACITORUM CORONA. 358
the lands of B. shall descend to the sisters of ^^. as aunts and collate-
ral heirs oi B. 1, Because the corruption of blood by the attainder is
removed by the restitution. 2. Altho the words of the act of resti-
tution be to restore B. only as heir to J2. <§«c. yet this doth not only
remove the corruption of blood, and restore him and his lineal heirs
in blood, but also his collateral lieirs, and removes that im-
pediment, which would have hindered the descent to them. [ 359 ]
Co. P. C. cap. 106. Cour/ ne J/' s case.
It appears BoL Pari. 25 E. 3. n. 54, 55. that John Mutravers^
that was attainted of treason in 4 E. 3. obtaind letters patent from
the king of restitution in blood, but it was not effectual, and there-
fore there is enacted a general restitution as well in blood, as to
his land by a charter enacted and confirmed in parliament, namely
by the king with the consent of the lords at the petition of the com-
mons.
II. As to the second matter, namely the forfeiture of the wife's
dower.
At common law the husband being attainted of treason or felony
the wife should lose her dower, tho it were dower assigned ad ostium
ecclesise or ex assen.su pairis, Co. Litt. §.41. p. 2>1. ibidem §. 747.
but not upon attainder of misprision of treason; but by the statute
of 1 E. 6. cap. 12. and 5 E. 6. cap. 11. tho her husband be attainted
of felony or murder, she shall not lose her dower.
But by attainder of her husband of high treason or petit treason
the wife shall lose her dower at this day, unless in case of attainders
of such treasons, where by special provision of parliament the wife's
dower is saved, as upon the statutes of 5 and IS Eliz. touching coin.
But if the husband seised in right of the wife hath issue by her,
and then the wife commits treason, and is attainted and dies, it seems
the husband shall be tenant by the courtesy, otherwise it were, if the
treason were committed before issue had: vide Co. Lilt. §. 35.
III. As to the third thing, namely the forfeitures, that happen by
attainder, they are of these kinds, of lands, or of goods and chattels,
or of dignities and honours.
1. As to the forfeiture of lands, generally the lands of all persons
attainted of treason belong to the king, but by special privilege they
may belong to a subject, as in case of the bishop ol Durham, Sfc. de
quo supra p. 254. ^-c.
If at common law tenant in tail were attainted of treason, or at
this day be attainted of felony, tho the inheritance neither eschete
nor be forfeited, yet the king hath (tipon office found) the
freehold during the life of the tenant in tail, and not barely [360 ]]
a pernancy of profits: adjudged T. 29 Eliz. Clenche's rep.
Venable^s case, and 3 Leon. n. 236. (c) Co. Litt. §. 747. and the
same law it is for tenant of life attaint.
•. But an attainder of treason or felony of a copyholder gives the
(c);>. 185.
360 HISTORIA PLACITORUM CORONA.
king no forfeiture, but regularly it belongs to the lord, unless special
custom be to the contrary.
By the custom of Kent, if the ancestors be attaint of felony and
executed, yet his lands shall not eschete but descend to the heir;
but if he be attaint by outlawry, or abjure, they are not priviledged
by the custom from eschete.
But if he be any way attaint of treason, yet the forfeiture thereof
belongs to the king notwithstanding that custom. 8 E. 2. Prescrip-
tion 50. Lambard^s Ferambidatio Kcnitix, p. 551.
If the tenant hold lands of a common person, and commit treason
and be attaint, yet the forfeiture belongs to the king of common right,
as a royal eschete; but if such person commit felony or petit treason
and be attaint, the lands eschete to the lord, of whom they were
immediately held, only the king shall have the year, day, and waste
of the tenement so escheted for felony or petit treason. Stamf.
Prserogativa Begis, cap. \Q.{d)
The commencement of this year and day is neither from the
attainder nor from the death of the party attaint, but from the time
of the inquisition found, tho the same be not found for many years
after the death of the person attaint. 49 E. 3. 11.
If tenant in tail or for life, or the husband seised in right of his
wife be attaint of felony, the king shall have the year, day and waste
against the wife, the issue in tail, and him in reversion. Stamf. P. C.
Lib. III. cap. 30.(e) 3 E. 3. Coro. 327, but of this more hereafter.
The relation of the forfeiture or eschete of lands for treason or
felony to avoid all mesne incumbrances is to the time of the offense
committed.
t^. and B. joint tenants in fee, ,^. is attaint of treason or felony
and dies, the land survives to B. but vet subject to the title
[361 ] of the forfeiture. H. 10 Car. Bat/ 342. B. R. Harrison
and Walden.
If a man seised in fee alien, and then be attaint of treason or felony
by confession or abjuration upon an indictment supposing the felony
committed before the alienation, the alienee may not only falsify the
attainder in the point of the time of the felony supposed, but also in
the very point of the felony or treason itself, and is not concluded by
the confession of the alienor, tho the alienor himself be concluded.
49 E. 3. 11. 7 E. 4. 1. Co. P. C. cap. 104.;?. 231.
But if he be attaint of felony or treason by verdict upon an indict-
ment, supposing the offense before the alienation, tho the alienee
cannot falsify the attainder by supposing there was no felony com-
mitted, yet he may falsify it as to the point of time, viz. he may
allege contrary to the indictment, that the felony or treason was com-
mitted after the alienaiion, and not before, Co. P. C. ubi supra
32 Eliz. Syer's case.
If a man be indicted of a felony or treason supposed the 1st of
Jlpril 24 Car. and in truth it was committed 1 Junii 24 Car. yet he
{d) See Mag. Chart, ca'p. 22, 2 Co. Inst. 3G. (e) 190 b.
HISTORIA PLACITORUM CORONA. 361
shall be convicted notwithstanding that variance, for the day is not
material; yet in such case for the avoiding of the danger and trouble,
that may ensue by tiie relation of such attainder to the day men-
tioned in the indictment, it is fit for the jury to find the true day:
vide Syer^s case, ubi supra.
If a man be outlawed upon an indictment of felony or treason, and
pending the process he alien the land, yet the king or lord shall have
the land, which he held at the time of the felony committed, for the
indictment contains the year and day, when it was done, unto which
the attainder by outlawry relates.
But if a man sue an appeal by writ of felony or murder, and pend-
ing it the party aliens, and then is outlawed before appearance, the
lords eschete is lost, because it relates only to the time of the out-
lawry pronounced, in as much as the writ of appeal is general, and
contains no certain time of the ofiense committed, cited to be adjudged
5 E.e Co. Lilt. § 4./0/. 13 «.
But it seems, that if the defendant had appeared and the
plaintiff" had declared upon his writ, and the defendant had f 362 ]
been convict and attaint by verdict or confession, or if the
appeal had been by bill, and thereupon the party had been outlawed,
iho before appearance, the eschete had related to the time of the fact
committed to avoid mesne incumbrances, for in the declaration in the
one case, and in the bill in the other case, the year and day of the
felony is set forth.
Touching forfeiture of goods.
The goods of a person convict of felony or treason, or put in exi-
gent for the same, or that fled for these offenses, or that stands mute,
are forfeit to the king.
But the relation of these forfeitures refer not to the time of the
oflense committed, nor to the time of the flight, but only to the con-
viction or to the time presented, or to the time of the exigent
awarded.
And therefore an alienation made by the felon or traitor, or person
flying bond fide and without fraud, mesne between the offense or
the flight, and the conviction or presentment of the flight is good, and
binds the king, but if fraudulent, then it is avoidable by the statute
of 13 EUz. cap. 5. 3 E. 3. Coron. 296. ibidem 344.
If a man commits a felony and be pursued, and in the flight be
killed, whereby he can neither be indicted nor convict, yet if this
matter be found by inquisition before the justices in eyre or of oyer
and termi7ier, he shall forfeit the goods he had at the time of the
flight, and not those only, which were his at the time of the inqui-
sition found, for there it must relate to the flight, because the party
is dead, and can be no farther proceeded against, 3 E. 3. Coron.
'290. 312.
If a party be acquitted of treason or felony, the jury that acquits
him ought to enquire of his flight for it, and if they find he fled,
what goods he had, for his goods and chatties are thereby for-
362 HISTORIA PLACITORUM CORONA.
feited ;(4) but this is but an inquest of office, and therefore is tra-
versable by the party : vide Stamf. P. C. Lib. III. cap. 21.(/)
But upon an inquisition before the coroner of the death of
[ 363 J a man super visum corporis, tho the party accused be
acquitted, yet if it be presented, that he fled for it, it is
doubted whether that inquisition as to the flight be traversable : vide
Slamf. P. C. Lib. III. cap. 21.
But on all hands it is agreed, that if the coroner upon the inquest
super visum corporis presents one as guilty, and that he fled for it,
and the party is arraigned and found not guilty, and also that he did
not fly, yet that doth not avoid the first inquisition as to the flight,
but the best shall be taken for the king, tho both are in the nature
of inquests of office. 22 ^ss. 96. Forfeitures 27. 3 E. 4. Forfeit-
ures 35. H. 13 H. 4. Forfeitures 32. 7 Eliz. Dif. 238. b. '
A fugam fecit by the principal or accessary before, in murder, if
the fact be presented before the coroner, entitles the king to the goods
of the offender, for these are within the cognizance of the coroner,
but the coroner hath no power to enquire of accessaries after, nor
consequently of their flight, and therefore a presentment before the
coroner of the flight of an accessary after gives the king no title to
the goods. 4 H. 7. 18.
The usage was always upon a presentment of homicide before the
coroner, or of flight for the same, or upon a conviction of felony by
the petit jury, or the finding of a flight for the same, to charge the
inquest or jury to enquire, what goods and chattels he hath, and
where they are, and thereupon to charge the Villata where such
goods are with the goods to be answerable to the king : vide 3 E. 3.
Corone 296. S,' alibi, vide statute 31 E. 3. cap. 3.
But tho the goods of an off'ender be not forfeited till the conviction
or flight found by inquest, yet whether they may be seised upon the
ofl"ense committed, hath been controverted.
1? It seems clear, ihat at common law if a man had committed
felony or treason, or tho possibly he had committed none, yet if he
had been indicted or appealed by an approver, the sheriff, coroner,
or other officer could not seize and carry away the goods of the offen-
der or party accused.
2. Again, he could not in that case have removed the
\_ 364 ~\ goods out of the custody of the offender or party accused,
and deliver them over to the constables or to the Villata to
answer for them. 13. H. 4. 13.
3. But if the party were indicted or appealed by an approver, the
sheriff, or other officer might make a simple seizure of them, only to
inventory and appraise them, and leave them in the custody of the
servants or bailiifof the party indicted, in case he would give secu-
(/) p. 183. h.
[4] By the 7^8 Cfeo. 4. c. 28. s. 5. it is enacted, that where any person shall be in-
dicted for treason or felonv, the jury impaniicicd to try such person shall not be charged
to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason
or felony.
HISTORIA PLACITORUM CORONA. 364
rity against their being imbezzled, or in default thereof he might de-
hver them to the constable or Villata to be answerable for them,
but yet so that the party accused and his family have sufficient out
of them for their livelihood and maintenance, (§•) viz. Salvis capto &
familise snai necessariisestoveriis suis, & si captns convictus fuerit de
felonia unde rettatus est, residuum bonorum ultra estoveriuni illud
regi remaneat. Bract. Lib. III. 123. Fleta, Lib. I. cap. 26. 43 E. 3.
24. 44 Jiss. 14. Stamf. P. C Lib. III. cap. 32. Co. P. C. 228, 229.
4. And possibly the same law was, tho he were not indicted or
appealed, but de facto had committed a felony, but with this differ-
ence, if he had been indicted or appealed by an approver, this kind
of seizure might have been niade, whether he conmiitted the felony
or not; for in the books of 43 E. 3. and AAJiss. there is no averment,
that the felony was committed, but only that he was thus accused
of record, and so is the book of 13 H. 4. 13.
But in case there were no indictment, then it is at the peril of him
that seiseth, if he committed not the felony, and therefore it is issu-
able.
Now touching alterations by the statutes after made.
It seems, that by the statute of 5 E. 3. cap. 9. and the ensuing sta-
tutes, whereby it is enacted, that no man's goods shall be seized into
(he king's hands without indictment or due process of law, that it
was held, that this kind of seizure of the goods of a person accused
of felony, tho it be only in custodiam Sf causa rei servandse, hath
been held unlawful, if the person were not first indicted, or
at least appeald by an approver; and so the books seem to P 365 ]
import of 43 E. 3. 24. and 13 ^. 4. 13. and expresly my
lord Coke, P. C. cap. 103.;?. 228.
By the statute of 25 E. 3. cap. 14. where a party is indicted of
felony, the process directed by that statute is first a capias, and if he
be not found a second capias togetlier with a precept to seize his
goods, and if he be not found then, an exigent and the goods to be
forfeit.
And this is more than a simple seizure, such as was before at com-
mon law, for if the party came not in,Jiis goods are forfeit upon the
award of the exigent; and if he came in, tho his goods be saved, yet
there is no direction for delivering his goods upon security; but it
s^ems the sheriff is to take them into his custody, and yet out of them
must allow sufficient for the sustenance of the prisoner and his family.
Qiiasre, Whether in the case of such a seizure, a sale for a valuable
consideration before conviction and after seizure do not bind the king,
as it seems it doth in a case of seizure and delivery to the Villata:
vide 8. Co. Rep. 171. Fleetivood\s case.
This statute extends as well to treason as to felony, and yet it men-
tions only felony, and therefore at this day the exigent goes out upon
the second Capias returned non inventus, as well in treason, as
felony.
ig) See State Tr. Vol. IV. p. 615. Sir W. Parkin's case.
365 HISTORIA PLACITORUM CORONA.
By the statute of 1 R. 3. cap. 3. it is enacted, " That neither she-
riff, Si'c. nor other person take or seize the goods of any person ar-
rested or imprisoned before he be convict of the felony according to
the law of England, or before the goods be otherwise lawfully tbr-
feited, upon pain of forfeiting the double value of the goods so taken."
Mr. Stamford thinks this is but an atlirmance of the common law,
only that it gives a penalty, but it seems to be somewhat more than
so, for this prohibits the seizure of the goods of a party imprisoned,
tho he were also indicted, but not yet convicted, where unquestion-
ably the connnon law allowed such a seizure, as is before declared,
if the party or his friends did not secure the forth-coming of the goods,
where the party was indicted.
But upon this statute these things are considerable.
1. Whether it extends to treason; it seems it doth, for as
r 366 1 all treason is felony and more, so in a statute of this nature
for advancing of justice it seems comprised in it, for it is
within the reason of the law, and vide Co. P. C. p. 228, tho I know
it was otherwise held, or at least doubted in the case of Sir Henri/
Vane, whose rents were stopt in the tenants hands, and no precept
was granted for their delivery, tho before conviction, yea and before
the indictment, tho after imprisonment 1661.
2. Whether it extends to a party, that is at large and out of prison,
whether indicted or not indicted, and as to that, 1. It seems clearly,
that it doth not repeal the statute of 25 E. 3. cap. 14, touching the
second Capias with a seizure of goods. But 2. As to other persons,
that are at large and not indicted, nor process, as before, made upon
their indictment, it seems to me, that if they fly not, there can be no
seizure at all made, whether they are indicted or not, for the statute
did not intend a greater privilege to a party imprisoned for an offense
of this nature, than he that is at large. 3. That if he be at large and
fly for it, yet his goods cannot be seized and removed, whether he be
indicted or not indicted. 4. That if he be indicted and at large, 5'^et
the goods cannot be removed, but only viewed, appraised, and in-
ventoried in the house or place, where they lie. 5. That altho the
goods may not be removed, because the statute now hath taken
away that removal, that was in some cases at common law, yet nei-
ther in case of treason nor in case of felony, where the party is at
large, is it within the penalty of the statute as to the point of forfei-
ture of the double value, for as to that the statute is penal, but it is
within the directive and prohibitory part of the statute, which by an
equal construction and interpretation prohibits the thing to be prac-
tised, and hath altered the law as to the removing of the goods of the
party before conviction.
And yet I know not how it comes to pass, the use of seizing of the
goods of persons accused of felony, tho imprisoned or not imprisoned,
hath so far obtained notwithstanding this statute, that it passeth
for law and common practice as well by constables, sheriffs
("3671 and other tho king's oflicers, as by lords of franchises, that
there is nothing more usual : vide IJallon's Justice 0/ Peace,
HISTORIA PLACITORUM CORONA. 367
cap. 110.(/i) in affirmation of it, viz. that the officer may still take
surety, that the goods be not embezzled, and for want of sureties
may seize and praise them, and then deliver them to the town safely
to be kept, until the prisoner be convict or acquit, and cites for it
Stamf. 192. 8 Rep. 171. and B. Forfeiture 44.
It seems the opinion therefore of my lord Coke., P. c9cap. 103.
hath truly stated the law, at least as it stands upon the statute of
1 R. 3.
1. That before the indictment the goods of any person cannot be
searched, inventoried, nor in any sort seized.
2. That after indictment they cannot be seized and removed, or
taken away before conviction or attainder; but then it may be said,
to what purpose may they be searched and inventoried after indict-
ment, if they may not be removed, but are equally liable to embez-
zling as before.
I think he is not bound to find sureties, neither hath the offiCer at
this day any power to remove them in default of sureties, and com-
mit them to the vill, but only to inventory them and leave them
where he found them, (unless in case of the second Capias, whereof
before) for the prisoner or party indicted may sell them bond fide;
and if he may do so, the vendee may take them, and the Villata
cannot refuse the delivery of them to the vendee, tho the goods had
been delivered to them.
But there is this advantage by the viewing and appraising, that
thereby the king is ascertained what the goods are, and may pursue
them that take or embezzle them, by information, (if the party hap-
pen to be convict) and try the property with them, whether they are
really sold, or sold only fraudulently without valuable consideration
to prevent the forfeiture, and so forfeited by the statute of 13 Eliz.
cap. 5. notwiihstandiug such fraudulent sale. [5]
IV. Lastly, touching execution of judgments of treason, they are
directed by the judgment, whereof before.
There be nevertheless some things, that accidentally hap- [ 368 "1
pen, that suspend or abate the execution.
1. Reprieves ex arbitrio regis vel judicis, the king may by com-
mand or precept under his great or privy seal, privy signet, or sign
manual, yea by signification under the hand of the secretary of state,
Qi) New Edit. cap. 163. p. 538.
[5] By the Constitution of the United States, Art. 3. Sect. 3. it is provided that, Con-
gress shall have power to declare the punishment of treason; but no attainder of treason
shall work corruption of blood, or forfeiture, except during the life of the person attaint-
ed. The constitutions of Connecticut, Peiinsylvania, Delaware, Tennessee, Ohio, Indi-
ona, Illinois, Alabama, Missouri, and Arkansas, contain similar provisions. By «Seci. 24
of the Act of Congress o{ April 30, 1790, it is enacted, that no conviction or judgment
for any capital or other offences, shall work corruption of blood, or any forteiture of
estate. See Hylton v. Brown, 1 l-^'. C. C. R. 343. The doctrine of corruption of blood,
says Mr. Rawle, {Cuns. 146.) arises from an odious fiction, founded on a compound of
cruelty and avarice, springing from a perversion of the system of tenures, and at vari-
ajice with the liberal principles of modern times, and the very elements of justice.
VOL. i.^ — 34
368 HISTORIA PLACITORUM CORONA.
or at this day by the subscription of a master of requests, command
the reprieve of one condemned of treason or felony.
And ahho the judge, by whom judgment is given, ought to be
very cautious in granting a reprieve of one condemned for treason
before him, yet he may, upon due circumstances do it, as well in case
of treason, as felony.
And this reprieve he may grant, and after he hath granted it may
command execution after the sessions and adjournment of the com-
mission, Dy. 205. •
There are other reprieves, which are not arbitrary, but quasi de
j^ire.
1. In respect of pregnancy, for tho pregnancy be no plea to delay
judgment, yet it is a plea to delay execution, and therefore whenever
any judgment in treason or felony is given against a woman, it is the
duty of the judge, before he finish his sessions, to demand of her what
she can allege why execution should not be made; yea in all cases,
where a prisoner attaint is brought into another court, or reprieved
to another sessions, he ought not to have any award of execution
against him, till he be first demanded, what he can say, why it
should not be, for possibly he may have a pardon after judgment.
22 j3ss. 71.
This plea of pregnancy in retardationem exeai/ionis hath these
incidents to it: 1, She must be with child of a quick child. 2, If
it be' alleged, the judge, before whom it is alleged, must impanel an
inquest of women ex officio to enquire of the truth of her allega-
tion, viz. whether she be with child of a quick child, and if they
find she is, then her execution is to be respited, if not, she is to be
executed.
If it be found by the jury of women, that she is so with child, some
have used to command a respite of her execution till a convenient
time, for instance a month after her delivery, and then to be
[ 369 ] executed ; but this seems irregular, for she may have a par-
don to plead, and therefore it is to be respited till another
sessions. 12 ^ss. 10.
If she have once had the benefit of this reprieve and be delivered,
and afterwards be with child again with another quick child, she
shall not have the benefit of a farther respite of the same judgment
for that cause; gnod vide 23 ^.ss. 2 Coran. 188. 22 E. 3, ibidem 253.
K the jury of women be mistaken in their verdict, and find her
quick with child, where in truth she was not at all with child, (as
.once it happened at Akshriry,) if the next sessions of goal-delivery,
or oyer and lerviiner happen at that distance, that it is impossible by
the course of nature, that she could be with child, but she must be
delivered mesne between the former sessions and this, as if it were
ten months, 4*c, she shall be executed; but if the second sessions hap-
pen within such time after the first, that by course of nature she may
still continue with child, as if it be within the distance of six months
or the like, then she shall continue under the first reprieve till an-
other session, nam licet lempus ordinurium vilalis foetus sit post
HIStORIA PLACiTORUM CORON.^. 369
16. vel IS. septimanas post impregnatam, tamen in quibusdam
citiiis contingere potest juxta medicoriim placita.
If in truth she were not with child with a quick child at the time,
when the jury gave their verdict, but became quick after, nay tho
she were not at all with child then, but became with child before the
time of the second session with a quick child, in my opinion she shall
have a second reprieve by reason of pregnancy, for the advantage that
she had at first was not really because of pregnancy, but by a mis-
take of the jury of women, and therefore in favorern prolis she shall
now have it.
And therefore, as hath been said, in all cases of reprieves for pregr
nancy the judge ought to make a new demand, what the prisoner hath
to say, wherefore execution should not be awarded, for the first
respite being by a kind of matter of record shall not be determined
withoiit a new award of execution; and altho clerks of as-
sises enter those respites and awards only in a book of [ 370 ~\
Jigenda, yet regularly they are supposed to be entered of
record, and these memorials are warrants for such entries, tho de
facto it be not usually done. [6]
Another cause of regular reprieve is, if mesne between the judg-
ment and the award of execution the offender become non compos
7nentis,{i) the judge in that case may both in case of treason and
felony swear a jury to inquire ex officio, whether he be really so, or
only feigned or counterfeit; and thereupon if it be found that he be
really distracted, must award a reprieve de jure till another sessions,
Co. P. C. p. 4. and the statute of 33 H. S. cap. 20. that directed an
execution of parties convict of treason notwithstanding insanity inter-
vening after judgment is repeald, by 1 4* 2 P. <^' M. de quo supra
p. 283.
Now as to the abating of some parts of the execution in case of
high treason, as drawing, hanging, evisceration and quartering, and
leaving the offender only to be beheaded, this may be, and usually is
by the king's warrant under his great seal, privy seal, yea or his privy
signet, or sign manual, as usually is done in case of noblemen or
great men falling under that judgment, for one part of the judgment,
viz. decollation, and the substance of the whole judgment, ?;<>. the
death of the party, is performed. [7]
(i) See Sir John Hawles^s remarks on the trial of diaries Bateman, Slate Tr. Vol. IV.
p. 204.
[6] The warrant to execute a man in England is nothing more than a marginal note!
4 Bl. Com. 403.
[7J 2 BL Com. 251. 4 id. 380. 388. 1 Burn's Just. 306. ''Attainder:' 1 Chit. Cr.
Law. 723.
371 HISTORIA PLACITORUM CORONA.
CHAPTER XXVIII.
TOUCHING THE CRIME OF MISPRISION OP TREASON, AND FELONY, &C.
Tho the order proposed in the beginning should refer misprision of
treason to that series of offenses, that are not capital, yet because
this offense hath relation to treason, and may be of use to explain
the nature of it, I shall here take it into consideration, referring
misprision in its large and comprehensive nature to its proper place.
Misprision of treason is of two kinds.
1. That which is properly such by the'common law.
2. That wliich is made misprision of treason by act of parliament.
Misprision of treason by the common law is, when a person knows
of treason, tho no party or consenter to it, yet conceals it and doth
not reveal it in convenient time.
Tho' some question was antiently, whether bare concealment of
high" treason were treason, yet that is settled by the statute of 5 4' 6
E. 6. cap. 11. and 1 4' 2 P. fy M. cap. 10. viz. that concealment or
keeping secret of high treason shall be deemed and ta:ken only mis-
prision of treason, and the offender therein to suffer and forfeit, as
in cases of misprision of treason, as hath heretofore been used: tho
in the time of Henry VIII. and Edward VI. some things were made
misprision of treason, that were not so formerly, yet by the statute
of 1 Mar. cap. 1. it is enacted, that nothing be adjudged to be trea-
son, petit treason, or misprision of treason, but what is contained in
the statute of 25 E. 3. and altho that act of 25 E. 3. do not make or
declare misprision of treason, yet it doth it in effect by declaring and
enacting what is treason, which is the matter or subject of
["372 1 misprision of treason, tho the misprision or concealment
thereof be a crime, which the common law defines what
it is.
Therefore since the statute of 25 E. 3. is by the statute of 1 Mar.
cap. 1. made the standard of treason, it remains to be enquired,
what shall be said the concealment of such a treason according to
the reason and rule of the common law.
If a man knew of a treason, by the old'law in Bracton's time he
was bound to reveal it to the king or some of his council within two
days, r/iiod si ad tempiis dissimulaverit ^' sub/icucrii, quasi con-
sentiens, 4* assentiens erit sedtictor domini regis ;{a) but at this
day it is but misprision, if he reveals it not as soon as he can to
some judge of assise, or it seems to some justice of peace, for tho
the crimes of treason or misprision of treason be not within the com-
mission of a justice of peace to hear and determine, yet, as it is a
breach of the peace, the justices of peace may take information
upon oath touching it, and take the examination of the offenders
(o) Bract. Lib. III. de corona, cap. 3.
HISTORIA PLACITORUxM CORONA. 372
and imprison them, and bind over witnesses, and transmit these
examinations and informations to the next sessions of gaol-delivery
or oyer and terminer to be further proceeded npon as is truly-
observed by Mr. Dalton,{h) cap. 90. nay, I have known chief jus-
tice Rolls affirm, that justices of the peace may take an indictment
of treason, tho they cannot determine, viz. as an information or
accusation tending to the preservation of the peace.
But some treasons enacted by some statutes are limited to be heard
and determined by them, as appears in some of the statutes before
mentioned, p. 350.
It is said 3 H. 7. 10. Stamf. 38. n. Dalton, cap. 89.,(c) the utter-
ing of false money known to be false is misprision of treason ; but
it is a mistake; indeed it is a great misprision, but not misprision of
treason, unless the utterer know him that counterfeited it, and con-
ceal it, this indeed is misprision of treason, but not the
uttering of it, for the money is not the traitor, but he that [ 373 ]
counterfeited it, and his counterfeiting is the treason.
As all treasons and declarations of treasons between 25 E. 3. and
1 Mar. are repealed by 1 ]\Tar. cap. 1. so consequently" all mispri-
sions of any other treason not contained in 25 E. 3. are thereby
repealed. Coke P. C. p. 24. hath these words, Misprision of treason
is taken for concealment of high treason or petit treason, and onlij
of high treason or petit treason specified and expressed in the act
of 25 E. 3. and in the margin, that is of such treason high or petit,
as is expressed in the act of 25 E. 3. and of no other treason /and
accordingly uttering of counterfeit coin was agreed by the court(c^)
at Newgate., Jill gust 1661. to be neither treason or misprision of
treason within the statute of 25 E. 3. but only punishable with fine
and imprisonment; ex libra domini Bridgman manii sua scripto.
If a subsequent act of parliament after 1 Mar. make a new trea-
son, the concealment of such a treason is certainly misprision of trea-
son for these reasons, 1. Because misprision of treason is not any
substantive crime of itself, but relative to that, which is, or is made
treason, and a kind of necessary consequent and result from it, as the
shadow follows the substance. 2. And hence it is, that tho the
statute of 25 E. 3. does not by express words enact misprision of
treason, to be an offense, yet treasons being settled by that act, the
statute of 1 Mar. cap. 1. enacts there shall be no misprision of trea-
son but what is enacted by the statute of 25 E. 3. for tho that act
speaks not of misprision of treason, yet settling those things that are
treason, it doth virtually and consequentially make the concealing of
'any of them misprision of treas'^n ; but yet farther, when the act of
•1 4* 2 P. 4' M. cap. 10. enacts divers new treasons, tho it enacts
nothing to make the concealment thereof misprision, yet in the pro-
viso abovementioned it takes notice, that concealment of any of these
(6) New Edit. cap. ]41.p. 460.
' (c) New Edit. cap. 140. p. 452. This last book says it is misprision of treason, but
the other two only say it is a misprision,
{d) In the case of Richard Oliver, Kel. 33.
373 HISTORIA PLACITORUM CORONA,
treasons would be at least misprision of treason, and therefore pro-
vides that the concealment thereof shall not be adjudged
[374] treason, but only misprision of treason, any thing above-
mentioned to the contrary thereof notwithstanding; and the
like clause is in the abovementioned statute of 5 <§• 6 E. 6. cap. 11.
Again, my lord Coke, P.C. cup. 65. p. 139. says, As in case of
high f}'eason, tvhethe?' the treason be by the common law or statute,
the concealment of it is misprision of treason ; so in case of felony,
whether the felony be by the common law or by statute, the con--
cealment of it is misprision of felony; so that certainly, if a felony
or a treason be enacted by a new law, the concealment of the former
falls under the crime of misprision of felony, and the latter under the
crime of misprision of treason, as a consequent of it without any spe-'
cial words enacting it to be so.
All treason is misprision of treason and more, and therefore, he
tliat is assisting to a treason, may be indicted of misprision of trea-
son, if the kills pkase. Stamf P. C. 37. b. Co. P. C. 36. 2 R. 3.
10 b.
Altho the, statute of 1 S,' 2 P. S,- M. cap. 10. hath as to treasons
repealed the statute of 33 //. 8. cap. 23. for trying treasons in one
county committed in another, yet it hath not repealed the same
statute as to the trial of murder and misprision of treason, which
may yet be tried according to the statute of 33 H. 8. cap. 23.
In case of misprision of treason and misprision of felony, as well
as in case of treason or felony, or accessary thereunto a peer of this
kingdom shall be tried by peers, but the indictment is to be by a
common grand inquest. 2 Co. Inst. 49.
The judgment in case of misprision of treason is loss of the profits
of his lands during his life, forfeiture of goods, and imprisonment
during life.
Ey what hath been said touching misprision of treason v/e may
easily collect what is the crime of misprision of felony, namely, that
it is the concealing of a felony which a man knows, but never con-
sented to, for if he consented, he is either principal or accessary in
the felony, and consequently guilty of misprision of felony and more.
The judgment in case of misprision of felony in case the concealer
be an officer, as sheriff or bailiff, S^c. is by the statute of
\_ 375 ~\ PFestminst. 1 cap. 9.(e) imprisonment for a year and ransom
at the king's pleasure; if by a common person, it is only
fine and imprisonment.
And note once for all, that all those acts of parliament, that speak
of fines or ransoms at the king's pleasure, are always interpreted of
the king's justices : vide Co. Magna Carta super slat. Westtninst.
1 cap. 4. in fine{f) <§• saepius alibi. 2 R. 3. 11. a. voluntas regis in
curia, not in camerd.'
And it seems, that misprision of petit treason is not subject to the
judgment of misprision of high treason, but only is punishable by fine
and imprisonment, as in case of misprision of felony.
(e) 2 Co. Inst. 172. (/) 2 Co. Inst. 168.
HISTORIA PLACITORUM CORONA. 375
II. I come to misprisions of treason so enacted by acts of parlia-
ment since 1 Mar. cap. 1. for, as before is observed, by that act all
misprisions, that by any statnte made after 25 E. 3, are either
expressly or consequentially made misprisions of treason, are repealed
and set aside.
All acts of parliament, that after 1 Mar. enacted any thing to be
high treason, do consequentially make the concealment thereof to be
misprision of treason, tho it do not in express words enact the con-
cealment thereof to be misprision of treason, as hath been before
shewn, and the like in case of felony.
And consequently those acts of parliament, which enacted tempo-
rary treasons, as the statute of 1 4* 2 P. 4' M. cap. 10, the act of
1 Eliz. cap. 5. (^'C. so far forth as they are temporary, the misprisions
of such treasons are also temporary, and expire with the act, and
where the acts of treason are perpetual, or being but temporary, are
made perpetual by some other act of parliament, the misprision of
such treasons remains such, as long as the act of parliament making
such treason continues, or is continued, as upon the statutes of 5 Eiiz.
and 18 Eliz. 1 Mar. touching counterfeiting of foreign coin made
current by proclamation, or clipping or washing coin.
And the like is to be said in all respects of misprision of felony
made so by act of parliament.
But besides these crimes, that are consequentially mispri-
sion of treason, some oifenses are made misprision of trea- [376 J
son, as a kind of substantive offense, and not consequential
upon the making of treason, but particularly enacted.
Those of that kind, that are perpetual and have continuance, are
as follow :
14 Eiiz. cap. 3. "They that counterfeit foreign coin of gold or
silver not permitted to be current in this kingdom, their procurers,
aiders, and abetters shall suffer, as in case of misprision of treason.
And note, that in that act (aiders) are intended of aiders in the fact,
not aiders of their persons, as receivers and comforters, for, as hath
been observed /?. 236. in some acts of parliament aiders being joined
with procurers, counsellors and abetters are intended of those, that
are aiding to the fact; but in other acts of parliament, where the
word aiders is joined with maintainers and comforters, it is intended
of those, that are aiders ex post facto to their persons; see this diifer-
ence in the penning of several acts of parliament, for the first part
5 Eliz. cap. 11. 18 Eliz. cap. 1. 1 Mar. sess. 2. cap. 6. touching coin,
and for the second part this express distinction observed 13 Eliz.
cap. 2. touching publishing of bulls of absolution, where the former
kind are enacted to be traitors; the second incur a prxmunirc; the
like 23 Eliz. cap. 1.
13 Eliz. cap. 2. "If any bull or absolution, or instrument of re-
conciliation to the see oi Rome be offered to any person, or if any
person be moved or perswaded to be reconciled, if he conceal the
said of!er, motion or perswasion and. doth not discover or signify it
by writing or otherwise within six weeks to some of the privy
376 HISTORIA PLACITORUM CORONA.
council, Sf'C. he shall incur the penalty and forfeiture of misprision
of treason, and that no person shall be impeached for misprision of
treason or any offense made treason by this act, other tiian sucii as
are before declared to be in case of misprision of treason:" noia, had
it not been for this cause the concealment generally of any treason
within this act had been misprision of treason. [1]
23 Eliz. cap. 1. "All persons, that shall put in practice to
[ 377 ]] absolve or withdraw the subjects of the queen from their
obedience, or to that end perswade them from the religion
here established, or if any person shall be so absolved, every such
person, and their counsellors and procurers thereunto, shall bead-
judged guilty of high treason.
"And all persons, that shall wittingly be aiders and maintainors of
such person so offending, or any of them, knowing the same, or
which shall conceal any offense aforesaid, and not reveal it within
twenty days after his knowledge thereof to some justice of peace, or
other higher officer, he shall suffer and forfeit, as in misprision of
treason. [2]
CHAPTER XXIX.
CONCERNING PETIT TREASON.
As at common law there was great uncertainty in high treason, so
there was in petit treason.
It is true, that all the petit treasons declared in this statute(«) were
petit treasons at common law, as for a servant to kill his master or
mistress, 12 ^ss. 30. a woman to kill her husband, as appears 15 E. 2.
Corone 383. and the judgment was the same at common law in such
cases, as now, and the lands of him, that was attaint of petit treason,
escheted to the mesne lord, of whom they were held, 22 Jiss. 49. so
that as to these things the act of 25 E. 3. was but an affirmance of
the common law.
But yet there were certain offences, that Were petit treason atcom-
(o) viz. 25 Edw. 3.
[1] See 1 East, P. C. 139. 4 Bl. Com. 120.
[2] It has been enacted by Sect. 2. of the act of Congress of April 30, 1790, that if any
person or persons having knowledge of the commission of any ot'the treasons defined by
tiiat act, shall conceal and not as soon as may be disclose and make known the same to
the President of the United States, or some one of the Judges thereof, or to the President
or Governor of a particular State, or some one of the Judges or Justices thereof, such
person or persons on conviction shall be adjudged guilty of misprision of treason, and
shall be imprisoned not exceeding seven years, and fined not exceeding one thousand
dollars. Weidle''s case, 2 Dall. 88. was an indictment for misprision of treason for speak-
ing certain words tending to excite resistance to the government of the commonwealth
of Pennsylvania. No instance of this offence has occurred against the government of
the United States.
HISTORIA PLACITORUM CORONA. 377
mon law, that are restrained and abrogated by this statute from being
petit treason.
15 E. 2. Corone 383. A woman intending to kill her
husband beat him so, that she left him for dead, but yet he [ 378 ]
recovered, for this attempt the wife had judgment to be
burned.
Fleta, Lib. I. cap. 22. Britton, cap. 8. If the homager or servant
falsify the seal of his lord, or had committed adultery with the lord's
wife or daughter,(A) it was petit treason.
But these are taken away by this act of 25 E. 3. and are reduced
only to these three ranks:
1. The servant killing his master or mistress, 2. The wife killing
her husband. 3. The clergyman killing his prelate or superior, to
whom he owes faith and obedience.
All petit treason comes under the name of felony, and a pardon of
all felonies, where petit treason is not excepted, at common law par-
doned petit treason, and so at this day doth a pardon of murder.
A man or woman, that commits petit treason, may be indicted of
murder, but if all felonies, S^c. are pardoned by act of parliament,
wherein there is an exception of murder, it seems that a murder,
which is a petit treason also, is discharged and not within the excep-
tion, M. 6^-7 Eliz. Dyer. 235.(c)
The killing of a master or husband is not petit treason, unless it
be such a killing, as in case of another person would be murder, and
therefore upon an indictment of petit treason for a servant killing his
master, if upon the circumstances of the case it appears to be a sud-
den falling out, and the servant upon a sudden provocation kills his
master, which, in case it had been between other persons, had been
only manslaughter, the jury may acquit him of petit treason, and find
him guilty of manslaughter; and thus it was once done before me
at Dorchester assizes, and another time before justice Windham at
Coventry assizes, tho the indictment were for petit treason.
If a wife conspire to kill her husband, or a servant to kill his mas-
ter, and this is done by a stranger in pursuance of that con-
spiracy, it is not petit treason in the servant or wife, because [^379 ]
the principal is only murder, and the being only accessary,
where the principal is but murder, cannot be petit treason; but if the
wife and a servant conspire the death of the husband, being his mas-
ter, and the servant etiect it in the absence of the wife, it is petit
treason in the servant, and she is accessary before to the petit treason,
and shall accordingly be indicted and burnt P. 16. Eliz. Dy. 332. a.
40 Jiss. 25.
If the servant and a stranger, or the wife and a stranger conspire
to rob the husband or master, and the servant or wife be present and
(J)) Biitlon adds, or the nurses of Ms children.
(c) The reason of this is, because petit treason is an offense of another species, 6 Co.
Rep. 13. b. but then by the same reason a pardon o( imirde.r does not include a pardon of
petit treason, nor can one guilty of jietit treason be indicted of murder. See Rex versus
Crispe, State Tri. Vol. VI. p. 224, 225.
379 HISTORIA PLACITORUM CORONA.
hold the candle, [while the husband or master is killed,*] the stranger
is guilty of murder, and the wife or servant guilty of pelit treason as
principal, because present, 2 S,^ 3 P. 8,- M. Dy. 128. a.
So that the statute of 25 E. 3. doth not only extend to the party,
that actually commits the offense, but also to those that were procu-
rers, aiders or abetters, scilicet, if they be present, they are guiity of
petit treason as principals, if absent, yet if the offense in the prmcipal
be petit treason, the offense in the accessary before is petit treason, as
accessary, as in BroiDn^s case, Dy. 332. a.
If a wife or a servant intending to poison or kill a stranger, and
missing the blow the wife by mistake kills or poisons her husband, or
the servant his master, this, that would have been murder, if it had
taken etlect against the stranger, becomes petit treason in the death
of the husband or master. Plowd. Com. 475. b. Crompt. de pace
regis 20. b. and Dolt. cap. d\.{d) so if he shoot at J. *SVand missing
him kills his master. Ibid.
If the wife or servant conspire with a stranger to kill the husband
or master, if the wife or servant be in the same house, where the fact
is done, tho not in thd* same room, it is petit treason in them, and
they are principals in law, because in law adjudged to be present,
when in the same house; but if they had been absent, then
[ 380 3 they had been only accessaries before the fact to murder.
Crompt. de pace regis 21. a. Blechendeii's case.
If the wife or servant conunand one to beat (he husband or master,
and he beat him, whereof he dies, if the wife or servant be in the
same house, it is petit treason in the wife or servant as principals, but
murder in the stranger. Crumpt. 20. b. Plowd. Com. 475. b.
For whatsoever will make a man guilty of murder will make a
woman guilty of petit treason, if committed upon the husband, or the
servant, if committed upon the master.
Eadem lex mutatis mutandis for an inferior clergyman in relation
to his superior.
But now to descend to particulars.
I. A servant killing his master.
Who shall be said a servant or a master.
If the servant kills his mistress or his master's wife, this is petit
treason within this act. 19 H. 6. 47. Plowd. Com. 86. b. Co. P. C.
20. 12 JJss. 30.
If a servant, being gone from his master, kills him upon a grudge,
that he conceived against his master, while he was in his service,
which he attempted while his servant, but was disappointed, it is
petit treason. 33 Jlss. 7. Plowd. Com. 260. a. Co. P. C. 20.
If a child live with his father as a servant, as if he receive wages
from him, or meat and drink for his service, or be bound apprentice
to him, and kills his father or mother, this is petit treason at this
day.(/) .
* These words arc not in the MS. but they are in the case cited from Dyer, and the
eense plainly re()uires tliem.
{d) New Edit, cap, 142. p. 462. (/) 1 Mar.Dalison 14.
HISTORIA PLACITORUM CORONA. 380
But if he receives no wages, nor meat and drink for his service, or
be not bound apprentice to him, but only is his son and not his ser-
vant, and kills his father, this was petit treason at common law.
21 E. 3. 17. b. per Tfinrp;{g) but the better opinion is, that it is not
petit treason at this day, because this statute of 25 E. 3. shall not in
this case be extended by equity: quod vide Co. P. C. 20. Lamhart
Jiistic. 248. Crompt 19. 6.,
II. The wife killing her husband.
If the husband kill the wife it is murder, not petit treason, [ 381 ]
because there is subjection due from the wife to the hus-
band, but not ^ converso.
If the wife be divorced from the husband causa aduUerii vel
saevi/iK, she is yet a wife within this law, because this dissolves not
the vincuiu7?i matrimonii by our law, for they may cohabit again,
but otherwise it is, if they be divorced causa consanguinitatis or
prxcontractdsf for then the vinculum is dissolved, they are no more
husband and wife.
If*.'?, be married to B. and during that intermarriage t/?. marries
Cf tho C. be, as to some purposes, a wife de facto, yet she is not a
wife within this law, for the second marriage was merely void, tho
perchance she may, upon circumstances, be a servant within the for-
mer clause, if she cohabit with Ji. and he finds her necessaries for
her subsistence; tamen quxre.
III. The clergyman killing his prelate, &;c.
If a clergyman living and beneficed in tbe diocese o{ Ji. kills the
bishop o{ that diocese, it is petit treason; but if he kills the- bishop of
the diocese of jB. it is only murder.
If a clergyman hath a benefice in the diocese of .^. and after, by
dispensation takes a benefice in the diocese of B. if he kills the
bishop of one diocese or the other, it is petit treason, for he owes and
swears upon his institution canonical obedience to the bishop of each
diocese.
If a clergyman beneficed in the diocese o{ A. within the province
of C. kills his metropolitan, it seems it is petit treason, tho he be not
his immediate superior.
If a clergyman be ordained by the bishop of A. in ordinem
diaconi, sive preshyteri sine titulo, yet it seems if he kills the
bishop it is peiit treason, for he professeth canonical obedience upon
his ordination.
, ^ Concerning proceedings in petit treasons.
•. In high treason all are principals, but in petit treason there are
principals and accessaries, as well before, as after.
If the principal be only murder, as being committed by a stranger,
the accessary cannot be petit treason, tho she be a wife or servant.
Dy. 332. Brown's case ubi supra.
ig) The book says, he was indicted for killing his mere (Iiis mother) but Coke P. C. ■
p. 20. says it is misprinted, and that it should be read maistre, (his master) for mre being
abreviated, (as periiaps it was in the MS. of tlje year booko) muy be read either way, tho
the last seems the most probable.
382 HISTORIA PLACITORUM CORONA.
But if the principal be petit treason, as being committed by a
wife upon her husband, or by a servant upon his master or mis-
tress, if the accessary be of the same relation, viz. a servant or
wife, the judgment shall be given against the accessary, as in petit
treason; but if the accessary, whether before or after, be a stranger,
(ho such stranger be an accessary to petit treason, yet. the judg-
ment shall be as in a case of felony ^against the accessary, viz.
qiind snspendatttr, for tho he be an accessary to petit treason, which
is the principal, yet such accessary being a stranger is not, nor can be
guilty of petit treason, because a stranger to the party killed, and
neither wife nor servant.
At common law, and by the statute of 25 E. 3. cap. 4. clergy was
allowable in case of petit treason, but not in case of high treason;
but now by the statute of 23 //. 8. cap. 1. 1 ^. 6. cap. 12. clergy is ex-
cluded from petit treason, as well as murder, and in the same kind.
If a person arraigned of high treason stands wilfully mute, he shall
be convicted as hath been formerly shewn ;[1] but if arraigned of
petiftreason, he stand mute, he shall have judgment of {*) peine fort
S,' dure. Crompt. 19. h. Co. P. C. 217.
The judgment of a woman convict of petit treason is to be
burnt, (//)[2] but (by Stamf. P. C.fol. 182. b.) in high treason to be
drawn and burnt, unless it be in case of coin, and then only to be
burnt, as in case of petit treason.
But the judgment against a man convict of petit treason is to be
drawn and hanged, trahatur 8^^ svspendatur per collum.
Stamford in P. C. 182. tells us, that the execution of drawing is
to be upon a hurdle, but 33 tdss. 7. Shard justice commanded, that
nothing should be brought, whereupon he should be drawn, mes
que sans cley ou autre chose a desouth lui soil tray de chivaux
hors de la sale, ou il avoit judgement, tanque a les furc, S^-c. but
that severity is disused: he is in such cases drawn upon a hurdle to
the place of execution.
And thus far touching petit treason. [3]
(*) [Peine fort and dure] but now see the Stat. 12. Geo. 3. cK 20. as to a person, ar-
raigned on any indictment, standing- mute. And 3 Burn. Edit. 1776. p. 211.
(A) The judgment of a woman convict of petit treason (or in case of coin) is all one as
in high treason, viz. tohe drawn and burnt. Co. P. C.p. 211. and so is the constant prac-
tice.
[1] Ante, p. 224. [2] Altered by the 30 Geo. 3. c. 48, to hanging.
[3] By the 9 Geo. 4. c. 31. s. 2, "every offence whicli before the commencement of
this act wouUl have amounted to petit treason, shall be deemed to be murder only, and
no grciiter offence; and ail persons guilty in respect tliereof, wlietlier as principals or as
accessaries, shall bo dealt with, indicted, tried, and punished as principals and accessa-
ries in murder." The crime of petit treason seems to be unknown to the jurisprudence
of the United.Statcs ; the otFender would in such case bo tried as for any other liind of
murder. Davis' V}rg.,C. L. iQ'J.
HISTORIA PLACITORUM CORONA. 383
CHAPTER XXX.
CONCERNING HERESY AND APOSTACY, AND THE PUNISHMENT
THEREOF.
Under the general name of heresy there hath been in ordinary-
speech comprehended three sorts of crimes: 1. ^.^Ipostacy, when a
christian did apostatize to Paganism or to Judaism, and the punish-
ment hereof, as well by the law of this kingdom, as by the imperial
laws, seems to have been by death, namely burning. Bract. Lib. III.
de corona, cap. 9. (a) by the imperial law he was subject to loss of
goods, Cod. de apostatis, tit. 7. lege 1. but it appears not, whether
he. were to suffer death. Ibid. I. 6. unless he solicited others to apos-
tacy.(6) 2. Witclicraft, Sortilegium was by the antient laws of
England of ecclesiastical cognizance, and upon conviction thereof
without abjuration, or relapse after abjuration, was punishable witli
death by writ de hxretico comburendo, vide Co. P. C. cap. 6. «§•
lihros ibi, Extr^ de hsereticis, cap. 8. §. 5. n. 6. 3* Formal heresy;
the old popish canonists define an heretic to be such, qui male sentit
vel docet de fide, de corpore Christi, de baptismate, peccatorum con-
fessione, matrimonio, vel aliis sacramentis ecclesise, & generaliter,
qui de aliquo prasdictorum vel de articulis fidei aliter praedicat, sentit
vel doceat, quam docet sancta mater ecclesia: and whereas the
antient councils and imperial constitutions grounded thereupon kept
the business of heresy within certain bounds and descriptions, as the
Manichees, Nestorians, Eufychians, 4'C. quod vide in Codice, Lib. I.
tit. 5. de hsereticis, I. 5. in the edict of Theodosius and Valentinian;
the papal canonists have by ample and general terms extended
heresy so far, and left so much in the discretion of the ordinary to
determine it, that there is scarce any the smallest deviation from
them, but it may be reduced to heresy according to the
great generality, latitude, and extent of their definitions and f 384 ]
descriptions, whereof see the gloss of Lindwood in titulo
de Hsereticis, cup. 1. Beverendissimse ad verbum declarentur: the
definition of Grostead, tho somewhat general, is much more rea-
sonable as we have it given by Mr. Fox, Acts <§' Mon. part. 1. p. 420.
Est sententia hnrnano sensu electa, palani docta, pertinaciter
defensa; but of this more hereafter.
In this business of heresy, and the punishment thereof, I shall, as
near as I can, use this method: 1. I will consider in general who is
the judge of heresy according to the common and imperial law.
2* Who shall be said an heretic according to tliose laws. 3. What
the punishment of an heretic is according to those laws: then I shall
consider more specially, viz. 1. What was the method of the con-
viction of heresy according to the antient law used in England
(a) p. 123. h. (b) Then it was capital, Lib. I. Cod. tit. 7. I. 5.
384 HISTORIA PLACITORUM CORONA.
before the time of Richard II, and Henry IV. And 2, What was
the usual punishment of heresy liere m England before the time t)f
Richard II. and Henry IV. 3. I shall give an account touching
the proceeding against heretics from the beginning of Richard II. to
the twenty-fifth year of king Henry VIII. 4. What is the method
of proceeding, and how the law touching heresy, heretics, and their
punishment from 25 H. 8, until the first year of queen Elizabeth.
5. How the law stood from 1 Eliz. to this day touching this matter.
I. According to the common and imperial law, and generally by
other laws in kingdoms and states, where the canon law obtained,
the ecclesiastical judge was the judge of heresies, and hereby they
obtained a large jurisdiction touching it, so that there was scarce
any thing, wherein a man dissented from the doctrine or practice of
the Roman church, but they took the liberty to determine heretical,
qui a recto tramite, & judicio ecclesise catholicse delectus fuerit
deviare, & is qui dubitat de fide catholica, yea even, qui despicit &
negligit servare ea, que Romana ecclesia statuit vel servare decreve-
rat: vide Zy//?f/!ooo^ de haereticis in cap. Reverendissimse «rf 2^er6i^m
declarentur, which left an excessive arbitrary latitude in the eccle-
siastical judge, and a great servitude and uncertainty upon men
subject to their censures: the ecclesiastical judge was either
r 385 3 extraordinary, viz. certain inquisitors thereunto deputed by
the pope, or ordinary, which was the bishop of the diocese,
as appears by Lindwood de hsereticis, cap. finaliter verb, ordinarius
in glossa;{*) only for the more solemnity of the business of degra-
dation, which accompanied the sentence of heresy upon one in orders
before the offender was left to the secular power, there were six, but
afterwards three bishops to be present in degradation a sacris ordi-
nihus, viz. the episcopal^ Presbyteratns, Diaconatus <§' subdiaco-
7ialus, but in minoribus ordinibus there was only required the
bishop and his chapter, canonici sive clerici, 6 decretal, cap. 2. after-
ward the business of degradation was reduced to one bishop, viz.
the ordinary of the place, so far at least as the same respected the
ordo Presbytcratus and inferior orders.
But I do not find, that by the canon or civil law the declaratory
sentence of heresy was necessary in a provincial synod, tho in great
cases, especially where a priest was to be degraded, it was most com-
monly done in a provincial synod, partly for the greater solemnity of
the business, and partly because in such synods more bishops and
others of the clergy were present; but how the use was in England
we shall hereafter see.
II. As to the second, touching heretics and their discriminations
according to the canon law, they may be distinguished into three
ranks: 1. Simplex hxreticus. 2. Hserelicus contumax. 3. Hasreticus
rela/j.s7is.
1. A simple heretic was such, as held an heretical opinion, but
being convened before tlie ordinary, and the opinion being substan-
(*) See also Lindwood de hareticis, cap, item quia verb, ordinarii.
HISTORIA PLACITORUM CORONA. 385
tially declared heretical, and the party convicted thereof, declares his
penitence and abjnres his opinion, in this case he was dismissed with-
out farther punishment, and this abjuration might be required by the
ordinary, and was of two kinds, viz. a special abjuration, whereby
he abjured that single heretical opinion, for which he was condemned,
or a general abjuration, whereby he renounced all heretical opinions:
vide Lindwond de hssrelicis, cap. Reverendissimse verb, nisi resipis-
cant & abjuraverint in forma ecclesias consneta: and this ab-
juration might be required not only of those, that were de- [ 386 ]
tected and convicted of heresy, but even of those, that were
graviter suspecti; and if they refused it, they proceeded to sentence
them as convict: Extr'' de Hsereticis, cap. ad aboleiidam.
2. A contumacious heretic was among them of two kinds: 1. Such.
as refused to appear before the ordinary, being accused of heresy,
and thereupon were duly excommunicate and so continued excom-
municate for one year, turn velut hxreticiis condernnetur, and was
thereupon delivered or left to the secular power, de hxrelicisy cap. 7.
cum conlumacid in 6io, 4'C. 2. Where the party accused of heresy
was convict by testimony of his own confession, and refused to repent
and abjure, such a one might thereupon be sentenced as an heretic,
and delivered over to the secular power, but yet he had this favour
or privilege, if even after such sentence he willingly repented and
abjured, the ordinary ought to accept thereof, and not deliver him
over to the secular power, but he was spared. Lindwood de Hx-
reticis, cap. Reverendissimse verb, resipiscant, 4' Extr^ de Hsereticis^
cap. ad abolend. verb, sponte recurrere; but then tlie ordinary might
detain him in prison: vide accordant 1 Mar. Br. Heresy.
3. A relapsed heretic: and herein they distinguish between Jicth
relapsus, <^' vert relapsiis: Lindwood de hsereticis cap. item quia,
wrb. relapso: 1. The former is where a man is accused of heresy, and
is under a great suspicion thereof, but not convicted, only the ordi-
nary puts him to abjure, which accordmgly he doth, and afterwards
doth entertain, visit, or comfort heretics, such a person by the canon
law may be sentenced as an heretic relapsed, and delivered over to
the secular power, but yet the ordinary may, as before, detain him in
prison without actual delivering of him over to the secular judge to
be executed. Lindwood ubi supra, <§• in 6to decretal, cap. S.^rcu-
sat' de hsereticis. 2. Vere relapsus is, when a man being convicted
of heresy, and abjuring again falls into heresy, if he be thereupon
convicted and sentenced, there can be no suspension of the sentence
by the ordinary, tho the party repent and conform, but he must be
delivered over to the secular power, and the sentence ought
to be given, and is not by any means to be suspended from [ 387 J
execution : (ito de Hsereticis, cap. 4.
But this relapsing is of two kinds according to the quality of his
abjuration: if the abjuration be general of all heresies, if he after fall
into any heresy, either that whereof he was formerly accused and
convicted, or any other, lie is to be sentenced as a relapsed heretic;
but if the abjuration be only special of that heresy whereof he is
accused, then he is not to be sentenced, as a relapsed heretic, unless
387 HISTORIA PLACITORUM CORONA.
he after fall again into the same heresy, which he so specially abjured;
but herein there is some difference among the doctors, for some think
even after a special abjuration of one particular heresy, if he falls into
another heresy, cense fur relapsiis: vide Extr. de Haereticis, cap.Ac-
ciisat. § 2, Eum vero in 6/0 S,' Lindwood de hvereticis, cap. Item
quia verbo sirapliciter in glossa : but the ordinary may put this out
of question, for it seems by the canon law he may at his pleasure in
cases of heresy requre a general abjuration, viz. de haeresi generali-
ter <5' simpliciter.
III. Now as to the punishment itself of heresy, especially of those
that are either contnmaces ov relapsi : 1. By the civil law; it is
true, that the conviction and sentencing of heretics is as well thereby,
as by the canon law, left to the ecclesiastical judge, so that without
a declaration or sentence of the ecclesiastical judge the civil jurisdic-
tion cannot proceed to inflict any punishment, Lindwood de hscreti-
cis, cap. Reverendissimge verb, contiscata in glosse tho confiscation
of goods of the heretic followed upon his conviction, necessaria
tamen est sententia declarativa judicis super ipsa confiscatione, &
hsec sententia fieri solummodo debet per judicem ecclesiasticum, &
non per judicem saecularem: vide in Glo de hxreticis, cap.. secundam
leges.
But tho the decision and judicial sentence of heresy was belonging
only to the ecclesiastical judge, yet the civil constitutions of emperors
and princes did institute and enact several penalties, as consequential
upon such sentence, such as were confiscation of goods, disherison of
heirs, and in some cases death, as we shall see hereafter: quod vide
in Codice, Lib. I. tit. 5. de hvcreticis per totam.
As to the penalty of death ultimum supplicium: it
["388 3 ^'lo'-^'^i seem the antient imperial constitutions made a dif-
ference between heresies in relation to that punishment: it
appears by the edict of Theodosius Codice, cap. 4. the Manichees
and Do7iatists were punished with death, and possibly so were the
Nestorians, ibidem cap. 6. and generally all heretics, that seduced
the orthodox to rebaptizatioii, ibid. cap. 23. many other heretics
were under milder sentences, some were punished with exile, some
with extermination from the city, some with pecuniary mulcts, and
some with confiscation, which, it seems, was the most usual punish-
ment: but it seems that by the constitution of the emperor Frederic,
(which yet is not extant) Hodie indistincte illi, qui per judicem eccle-
siasticum sunt damnati de haeresi, quales sunt pertinaces & relapsi,
qui non petunt misericordiam ante sententiam, sunt damnaudi ad
mortem per sa^culares potestates, & per eas debent comburi sen igne
cremari. Lindwood de hmreiicis, cap. Reverendissima; ve^^b. pcenas ;
and from this constitution of Frederic the course of burning gene-
rally all heretics indistinctly, if pertinacious or relapsed, took its rise.
Now as to the penalties by the canon law, it is true they go no
farther than ecclesiastical censiu'es, injunction of penance, excommu-
nication, and deprivation of ecclesiastical benefices; but yet they
made bold by some of their constitutions to proceed farther, and
HISTORIA PLACITORUM CORONiE. 388
indeed farther than they had authority; such were among others
imprisonment by the ordhiary, and confiscation of goods,(c) but
whether they adventured hereupon only in subservience to civil con-
stitutions, or whether by their own pretended power, may be doubt-
ful; but howsoever, it is so decreed in their canons and constitutions:
vide Linchvnod de hsereticisy cap. Reverendissimse verb, confiscata,
Sf' ibidem Item quia verb, sententialiter.
But indeed as to the inflicting of death upon heretics, their canons,
go not so far as that ; neither indeed need they, for emperors and
princes being induced by them to enact such severe constitutions,
they did in effect the business by sentencing the heretic, and
then leaving him to the secular power, so that the secular f 389 ]
power was only in nature of their executioner; and altho
they direct in some cases of treason an intercession to be made to the
secular power to spare the life of the offender thus committed over
to the secular power, Extr. de verborum significatione cap. Novi-
nius, yet we find no such curtesy for heretics, but the princes, that
do not effectually proceed according to the utmost of their power to
eradicate them, are threatned with excommunication, and accordingly
they are required to take an oath to perform it, Extr. de hsereticis,
cap. Ad abolendam.(*)
Therefore as to the punishment of heretics with death, of an here-
tic so declared by the bishop, it was left to the secular power with
this difference, if the person convicted were a layman, he was imme-
diately after his sentence to be delivered to the secular power to be
burnt; but if he were a clergyman within the greater or lesser
orders, he was first solemnly degraded, beginning with the chiefest
order he had, as that of priesthood, and so to the lowest, damnati per
ecclesiam judici saeculari relinquentur animadversione debita puni-
endi, clericis a suis ordinibus primo degradatis. Extr. de hsereticis,
cap. excommunicamus:(t) the solemnity whereof see at large in Qto
decretal de poenis cap. Degradatio, Fox's acts afid monuments
part \. p. 674. the degradation of William Saivtre.
This degradation by the latter cannons might be by one bishop,
tho formerly it required more.
•When the sentence was given by the ordinary, and the offender
thus left to the secular power, he was delivered over to the lay-
officer, and then a mandate or writ issued from the chief magistrate
to execute the offender according to the secular law; but of this
more particularly hereafter,
I have been the longer in these particulars, th^t we thereby may
observe these two things: 1. How miserable the servitude of chris-
tians was under the papal hierarchy, who used 50 arbitrary and un-
limited a power to determine what they pleased to be heresy, and
(c) For in Ennrland before the statute of 2 H. 5. cap. 7., neither lands nor goods were
forfeited by a conviction for heresy. 3 Co, Instit. 43.
(*) Vide Constit. Frederici, § 6.
(+) Vide Lindwood de hccreticis, cap. Finaliter verb, sententiet.
VOL. I. — 35
390 HISTORIA PLACITORUM CORONA.
then 0771721 appeUatione postposita subjecting men's lives to their
sentence.* 2. How finely they made the secular power their vas-
sals in execution of this odious piece of drudgery, as it was managed
and practised by them.
I come now to a closer consideration of heresy, and its punish-
ment according to the usage received in Engla7id, and the laws re-
lating thereunto, according to the method above propounded.
1. Therefore how the usage and law obtained concerning this
matter in England before the time of Richa7'd II.
As the romish religion was generally received here in E7igland
in this period, so the manner of proceeding touching heresy was
much according to the papal decretals and constitutions, whereof a
large account is above given.
The jurisdiction, wherein heresy was proceeded against, was at
the common law of two kinds: 1. The convocation of a provincial
synod. 2. The diocesan or bishop of the diocese, where the heresy
was publi&lied, and the heretic resided.
.1. As to the former it is without question, that in a convocation
of the clergy or provincial synod they might and frequently did
here in Engla7id proceed to the sentencing of heretics, and when
convicted, left them to the secular power, whereupon the writ of
Hssretico combiire7ido might issue, (thus it was done in the case of
the apostate Jew, Bract de Corona, Lib. \\\,{d) and the case of
Sawtre,{e) 2 H. 4. who was convict in the convocation of Lo7idon,y
and then the archbishop, who was prasces conci/ii, pronounced the
sentence, degraded the offender, if in orders, and signified the con-
viction into chancery, whereupon the writ de hxretico comburendo
issued.
2. As to the power of the bishop or diocesan alone there hath
been diversity of opinions ; some have thought, that the bishop of
the diocese might proceed against heresy by ecclesiastical
("391 ~\ censures, but as to the loss of life the conviction ought to
be at least in a provincial council, without which the heretic
ought not to undergo death by the writ de hairetico comburendo.^
1. For that in the case mentioned by Br acton, Lib. III. de Corond^
the conviction of that heresy, or rather apostacy, whereupon the
offender was burnt, was in the provincial council at Oxford. 2. The
writ de hseretico cornbnrendo in the register, and F. N. B. recites
the conviction to be in a provincial council, and according to it is the
opinion of Filzherbert, ibidem fol. 269. and the statute of 2 H. 4.'
(hereafter mentioned) giving ))ower to the ordinary finally to sen-
tence an heretic, so that death should ensue thereupon, was novx
jiirisdiclionis i/i hac parte i7itroductse. Again my lord Coke,
(*) Oodfridus Coloniensia anno 1234. spealjing of the severity of the pope and th^
emperor Frederic, (the antlior of the constitution afore-mcntioned for buininor heretics)
sayn, Kodem die, quo quid uocnsatus est sou juste, scu injustd, niillius appcllationi.s, nul-
tius dcfcnsionis relujrio proficientc, damnalur, & llaiiunas crudclitcr iiijicitur. See
also Mat. Paris, p. 4-2[).
{d) Lib. III. cap. 0. fol. 124.0.
(e) State Tr. Vol. VL Append, p. 2. Foz's Acts and Mon. Vol. I. p. 586. Rymer's Fad.
Vol. Vni.p. 178.
HISTORIA PLACITORUM CORONA. 391
12 Jiep. p. 56, 57. recites this to be the opinion of all the judges in
2 Mar. and ii} effect agreed unto 43 Eliz. by Sir John Popham, and
others, 5 Rep. Cawdrie's case, p. 23. a. accordant^ and Brooke
seems to accord. 1 Mar. Br. Heresy.
On the other side others have holden, that the diocesan alone by
the canon law might convict of heresy, and that thereupon this
writ may be issued: 1. This is consonant to the old decretals, and
likewise to the provincial constitutions of Arundel, Courtney and
Others, that the diocesan alone without the assistance of a provincial
council might convict of heresy, and deliver over the offender to the
secular power. 2. Again, the statute of 2 H. 4. cap. 15. recites and
admits the power of the diocesan in this case, but that by reason of
the offender's going from diocese to diocese, and refusing to appear
before the ordinary, he was interrupted in his proceeding, and there-
upon the statute gives farther remedy. 3. That accordingly it was
practised in the time of queen Elizabeth, when all former statutes
concerning heresy were repealed, and the case stood as it was at
common law, 4. That it was accordingly resolved by Fleming,
Ttmfield, Williams and Crake, in 9 Jac.,(f) when Legate wa.s
burnt for heresy; arid accordingly my lord Coke, P. C.
cap. 5. p. 40. seems to be of the same opinion, (^) and so f 392 ]
seems to retract what he had before delivered in his 12th
report.
This business will be further considered in the sequel of this chap-
ter, for the present I shall only say thus much.
1. That the diocesan, as to ecclesiastical censures, may doubtless
proceed to sentence heresy.
2. I think that at common law, and so at this day, (all former
statutes being now repealed by 1 Eliz. cap. 1.) if the diocesan con-
victs a man of heresy, and either upon his refusal to abjure, or upon
a relapse decree him to be delivered over to the secular power, and
this be signified under the seal of the ordinary into the chancery,
the king might thereupon by special warrant command a writ de
hasretico cornhurendo^h) to issue, tho this were a matter that lay in
his discretion to grant, suspend, or refuse, as the case might be cir-
cumstantiated.
And what is here said of the diocesan or bishop of the diocese is
(/) 12 Co. Rpp. 92.
. ig) Lord Cuke does not intimate as if he was of this opinion, or had retracted what .
hahad (said in his 12th report, and had been solemnly resolved in Cawdrie^s case;) he
says indeed, that from the statute of 2 H. 4. may be gathered this conclusion, that the
diocesan hath jurisdiction of heresy, and accordingly it was resolved in Legate's case,
aind^ that upon a conviction before the ordinary of heresy, the writ de hcsretico com-
burendo doth lie; this he mentions as also resolved in Legate''s case, as in truth it was;
but to this last resolution he doth not declare any assent, for it is the first only, which he
says may be gathered from the act of 2 H. 4.
(A) Whether this writ lay at common law, or was introduced by the clergy about the
time of Henry IV. hath been made matter of question: see State Tr. Vol. II. p. 275. if
the common law gave such a writ; it will be difficult to reconcile it with what our au-
thor says a little below, that the usual penalty was confiscation and banishment, and that
5 R.2. was the first temporal law against heresy, which yet went not so high as death,
but only to imprisonment and ecclesiastical censure.
392 HISTORIA PLACITORUM CORONA.
true als6 of the guardiaji of the spiritualities sede vacanfk, bilt 'till
the statute of 2 H. 4. the vicar general, commissary, or official of the
diocesan had no cognizance, unless by special commission as an inr
quisitor from the pope; and Lindwood gives the reason de hxreticis
cap. Item quia turpis verb, ordinarii in glossd, Est enirn causa
hsej'esis una de majoribus caitsis, qiix pertinent ad solos episcopos;
but the statutes of 2 H. A. cap. 15. 2 H. 5. c(ip. 7. while they were in
force, gave the cognizance of heresy, as well to the bishop's commis-
sary, as the bishop. . ,
3. But yet I never find before the time of Etchard II.
r 393 3 that any man was put to death upon a bare conviction of
heresy, tho after a relapse, unless he were sentenced in a
provincial council: and the reason seems to me to be this, when the
offender was convicted of heresy either thro pertinacity, or after a
relapse, and so delivered over to the secular power, the ecclesiastical
judge had done his business, and the rest that follows was to be the
act of the temporal or civil power, who were never obliged nor
thought themselves obliged here in England to take away the life of
a person upon so slender an account, as the judgment of a single
bishop, (i) nor indeed, unless it were a sentence by the weighty body
of a provincial council: vide Bracton, nbi supra.
For as this kingdom was never obliged by the canons or decretals
of popes or of provincial councils, further, than they were admitted,
so neither were they bound by the imperial constitutions of the em-
peror Frederic or others, who by their edicts inflict death upon all
persons censured by the diocesan to be relapsed or contumacious
heretics; but herein they did' as the laws and usages of the kingdom,
and their own prudence, and the circumstances of the case required
or directed.
But yet I take it, that the conviction before the diocesan alone
was a good conviction, and the party might thereupon be left to the
secular power, and so burnt by a writ de hxretico comburendo,\{
the king and his council thought fit, tho de facto it was not at all, or
at least not usually so done, till the time of Henry IV. unless the
conviction and sentence were in a provincial council, for the reason
before given.
Fitzherbert therefore was herein mistaken, and also when he saith,
it was to issue only in case of relapse; for a relapse could not be with-
out conviction, and if the party were thereby convicted of the heresy,
whereof he was accused, and persisted in it 'till after sentence, and
refused to abjure, such a contu77iax or pertinax hvereticiis might be
proceeded against as a relapsed heretic, and a writ de hseretico com-
burendo might thereupon issue, as it seems, for the writ in
r394 3 the register being formed upon a relapsed heretic, pursues
the case as it finds it, but is not exclusive of the other case
of a contumacious heretic, that persists therein before and after the
sentence; de quo vide supra; vide accordant 1 Mar. Br. Heresy, I.
and 25 H. 8. cap. 14.
(i) 12 Co, Rep. 56.
HISTORIA PLACITORUM CORON.E. 394
Touching the penalty of convicts of heresy here in England,! find
very rarely death inflicted; before the reign oi Richard II. the usual
penalty was confiscation, and seizure of goods; quod vide C/aus. 20.
H. 3. 7n. 1 1, dors, touching Ernald de Peregard, who was convict of
heresy, and his goods seized to the king's use ; the hke, Clans. 26 H.
3. in. 15. pro Stephana Peliter, and as to corporal punishment of
such convicts, it was usually in antient time banishment and stigma-
tizing, as appears by Ralph de Diceto, sub anno 11 60. in the time of
Henry II. and Brampton H. 2. suh anno 1159.,(*) but their convic-
tion was in a provincial council held at Oxon prsesente rege, <§• prx"
sentibus episcopis.
But quo jure the forfeiture of goods was then practised, is consid-
erable: vide Co. P. C. cap. 5. the forfeiture of goods was introduced
by 2 H. 5. and that statute being repealed, ceaseth.
And in the first temporal law, or pretended law(^) made against
such oflenders, viz. 5 R. 2. cap. 5. where, upon certificate by the
prelates into the chancery, commissions shall issue to the sheriffs to
apprehend and imprison the offender, it is only until they will justify
themselves according to the law and reason of holy church, so that it
seems the punishment did not hitherto de facto exceed imprisonment
and ecclesiastical censures ; and yet it seems that Swinderly and
others in the time of Richard II. before the statute of 2 H. 4. were
ordered to be executed for heresy: vide Fox part I. p. 5S0, 618. but
none by name appear to be executed, ibidem p. 659. but of this here-
after, (t)
As touching the writ de hseretico cofnbiirendo it was no writ
of course, nor issued by the chancellor, but by special war- [[ 395 ^
rant from the king upon the certificate of the conviction and
sentence made to the king under the seal of the archbishop, if it were
in a provincial council.
And thus far what I find concerning heresy at common law before,
the lime of Richard II.
II. As to the times of Richard II. Henry IV. Henry V. and so to
25 Henry VIII.
The first temporal law, or pretended law against heretics in this
kingdom, was 5 R. 2. cap. 5. which did not go so high as death, but
only to imprisonment and ecclesiastical censure, as appears by the
printed statute; but this was in truth no act of parliament, for the
commons never assented; and accordingly Rot. Pari. 6 R. 2. n. 52.
the same is declared by the king and parliament, which it is true,
i; * See also Mat. Paris, p. 1 05.
. (k) Our author here calls it a pretended law, and lord Colie calls it a supposed act,
because the commons never consented to it, for which reason in the next sest^ion of par-
liament it was annuld, altho by the prelates means it hath been continually printed, and
the act, which annuld the same, hath been from time to time kept from the print. 12 Co,
Rep. p. 57.
(t) It does not appear, that any were ordered to be executed for heresy in this reign,
and as to Swinderby, Mr. Fox says, he was declared an heretic, but suffered no great
harxn during the lite of king Richard II. and if he was burnt, it was not till after the
statute of 2 H. 4. See Fox's Acts and Mon. p. 620.
395 HISTORIA PLACITORUM CORONyE.
was never printed among the statutes, but is at large recited by Mr.
Fox, part \.p, 576. and therefore we find no other punishment du-
ring this king's time, but imprisonmentand ecclesiastical censures.
But in the time of Henry IV. the power of the diocesan was en-
\diX2.Qdi, viz. by the statute of 2 H. 4. cap. \5.{l.) viz. the diocesan
hath power given him to arrest and imprison persons suspect of he-
resy, till purgation or abjuration, and hath also power to fine and
imprison persons for those offenses, and estreat the fines; and if a
person be convict of heresy before the diocesan and his commissaries,
and do refuse to abjure, or having abjured fall into relapse, so that
according to the canons he ought to be left to the secular court,
whereupon credence shall be given to the diocesan or his commissa-
ries, then the sheriff' of the same county shall be personally present
at the preferring of the same sentence, when required by the diocesan,
and shall receive the person sentenced, and cause him before the
people in an high place to be burnt.
This statute gave in effect the whole power to the dioce-
[^ 396 ] san, and upon this account William Saivtre{rn) after sen-
tence and degradation in the provincial synod of London
was burnt in the beginning of Henry IV. 's usurpation; the whole
process and history of whereof is delivered by Mr. Fox in his acts
and monuments, part 1. p. 674, 675. and yet it is observable, this-
was not done barely by the order of the diocesan,(n) but a special
writ de hseretica comburendo issued to the mayor and sheriffs of
London to perform the same, which writ is there mentioned verba-
tim, and is the very same, which is recited by F. N. B./ol.269. and
was the warrant for the burning of William Sawtre.
Now touching this matter we are to observe, that the parliament
of 2. H. 4. began the 20th diViy o{ January in octabis Hilarii, it con-
tinued till the 10th of March following, JVilliam Sawtre, having the
year before been convicted for heresy before the bishop of Norwich,
was upon the 22d and 24th of Febr. 2 H. 4. (which was sitting the
parliament) in the provincial comicil held in St. PauPs, London, con-
victed and sentenced, as a relapsed heretic, and an heretic to be pu-
nished; this was done in the provincial council before Thomas Jirun-
clel, archbishop of Canterbury, as appears by the acts of the registry
of Canterbury collected by Mr. Fox, part I. p. 673, 674, 675. upon
the 26th of Febr. the writ de hseretico comburendo was formed and
(I) This statute was afterwards repeal'd by 25 //. 8. cap. 14.
(m) He was a parisli-pricst, first of St. Margaret oi Lynn in the county of Noi'fulk, and
afterwards of St. Sythc's churcli in Sythe-lane, London, and was the first, who appears to
have been executed for formal heresy in England. "
(n) Nor could it be so done, because lie was not sentenced by virtue of the act of H. 4.
which extended only to eonvietions before the diocesan or iiis commissary, wliereasiStfJO-
tre was convicted before the convocation; and even on a conviction before the diocesan
the sheriff" had no power to burn the party convict without a writ, unless he was preseat
at the pronounciiijj the sentence, see Slate Tr. Vol. VI. Append, p. I. besides, as our
author observes helow, this act did not pass till after Sawtre was sentenced, so that how
it can be said, that it was upon account of this act that Sawtre was burnt, 1 know not,
except it be with regard to the cncourojreunent the elerpy might take from the prospect
of its passing for anticipating the exercise of such a cruel (tlio to them desirable) powet.
HISTORIA, PLACITORUM CORONA. 396
made by the advice of the lords temporal in parliament, which writ
bears teste 26 Fcbj\ 2 H. 4. "per ipsinn rc^em Sc consilium in par-
liament o,?i\\(l isetnered.verbatijn in the parliament-roll 2 H.
4. n. 29. and is the very same with that in Filzh. N. R. [397]
before-mentioned, and agrees verhalim ysi\\\\ it; and upon
this writ Saivtre was burnt, being first solemnly degraded.
This conviction, sentence, and writ, iho after the commencement
of the the parliament, was before the end of that parliament, and con-
sequently before the statute of 2 H. 4, cap. 15. passed, which passed
not till the last day of the parliament, viz. 10 Martii; so that at that
time the offender could not be executed but by a writ de hxretico
comburendo, for the diocesan had not power by his own immediate
warrant to command execution, till that passed, which passed not,
till after the definitive sentence.
In this parliament there was a petition of the clergy against here-
tics which was the foundation of the statute of 2 H. 4. cap. 15. and
was granted by the king de consensu magnatnm S,' aliorum proce-
rum regni in prsesenti parliamento existentium, with some addi-
tional clauses, which were also drawn up into the act of 2 H. 4.
cap. 15. but in that answer no consent of the commons appears, and
yet the act was drawn up, and proclaimed, and, as it is now printed,
is recited to be at the petition of the prelates, clergy and commons of
the realm in parliament, and the enacting clause is by the king by
the assent of the states and other discreet men of the realm being in
the said parliament: this is observed by Mr. Fox in h\s Jlcts and
Monuments, part 1. p. 773. whereupon he concludes, that this was
no act of parliament, but an act of the king and clergy like that of
5 B. 2. before-mentioned, which was declared void, because the com-
mons never assented, as is before observed.
But the truth is, the commons did assent to this act, tho their assent
be not expressed in the parliament-roll as it is entered, as appears in
the speech of the speaker of the commons to the king the last day of
the parliament, Rot. Part. 2 H. 4. n. 47. where they thank the king
for the remedy he had ordained in destruction of the heretical doc-
trine of the sects; and besides in the same parliament-roll, n. 81.
" Inter petitiones communitatis, Item prient les communes, qe quant,
ascun home ou feme, de qel estate ou condition qil soit, soit
prise & imprisone per LoUardie, qe maintenant soit mesn [ 398 ]
en respons, et eit tiel judgement, come il ad deservy en ex-
ample dauires de tiel male sect per ligierment cesser lour malveys
predications, & lour tenir al a foy christian. Ro'. le Roy le voet.
It is true this was never drawn up into a distinct act, for the pro-
vision by the statute of 2 H. 4. cap. 15. had a full and effectual pro-
vision for it; but this petition of the commons with the king's assent
was the principal basis, upon which the statute of 2 H. 4. cop. 15.
was built, and the statute was drawn up upon both petitions, as well
that of the commons, as that of the clergy both put together, as was
usual in those times, and so warrants the recital of the preamble of
the printed statute of 2 H. 4. of the petition both of the clergy and
398 HISTORIA PLACITORUM CORONA.
commons,(*) and every man knows, that in the time of Henry IT.
and afterwards tlie true j3rofessors of the' christian rehgion, (that yei
for the same were sentenced as heretics,) came under the reproachful
title of Lollards.
This act of 2 H. 4. doth hot determine what is heresy or what not,
but leaves it to the decision of the diocesan, which wild and un-
bounded jurisdiction they had and used, till 25 H. 8. this therefore
was their power at common law, and the temporal judge or power
was to give credence herein to their sentence, but yet the consequeuce
thereof being but to be left to the secular power, the secular power
might exercise his own discretion, and grant a writ dehwretico com-
burendo,i{ he were satisfied of the justice of the sentence, or forbear
the granting it, if he were not satisfied, that the thing charged was a
real heresy, or that the ecclesiastical judge had proceeded fairly in
the case.t
But there were some points of power introduced by this
[ 399 ] act, and given to the diocesan, which he had not at the
common law, viz.
1. Power to arrest and imprison persons suspect of heresy, for
altho the pope's decretals had before this pretended to give power
of imprisonment to the diocesan, Extr. de psenis, cap. 3. in. 6to, yet
that power never obtaind in England, till this act of 2 H. 4.
2. Power to set and estreat fines upon the offender.
3. Power to deliver over immediately to the temporal officer a
relapsed or contumacious heretic to be burnt without expecting the
king's writ de hperetico comhurendo, with this notable advantageous
clause whereupon credence shall be given to the diocesan or his
commissary.
And accordingly the bishops after this act put the same in ure hy
their own immediate warrant or order delivering the party to the
sheriff to be executed; but yet the conclusion of their sentence ran
most commonly as formerly, viz. appointing him to be left to the
secular power, and so leaves him, but sometimes, as in the definitive
sentence against the lord Cobham, Fox, part 1. p. 734. committing
him from henceforth to the secular power, and judgment to do him
thereupon to death.
Now it is true, that upon the sentence of the diocesan the' sheriff
or officer, or any other were not to dispute, whether the same were
truly heresy or not. 1. Because it was an act within their cogni-
(*) This petition of tlie commons amounts to no more, than that the Lollards should
be cald to an account and punished according to their deserts, but contains nothing in
it, w.Licii can be a warrant lor such severe penalties, as are provided by that act, these
proceeded from the petition of the clergy.
(t) But by tije pa[)al constitutions this liberty is not allowed to the secular power, for
by those constitutions it is provided. That the punishment of heretics must not be relaxed
or delayed. Consiil. Inmc. IV. caj>. 24 and 32. Clem. IV. Constit. XIII. and "That all
magistrates under the penally of excommunication must execute the penalties by the '
inquisitors imposed on her(;ties without revising the justice of them, for heresy is a crime
merely ecclesiastical." Connlil.X. Bull. Rom. Tom. 1.^.453.
HISTORIA PLACITORUM CORONA. 399
zance and jurisdiction. 2. Because it is by 2 H. 4. enacted, that
credence herein shall be given to the diocesan or his commissary.
But yet as to the first point of the statute, the imprisoning of per-
sons suspect of heresy, the temporal judge had cognizance and power
to determine, whether fhai for which the party was imprisoned by
the diocesan were heresy or not; and if it appeared to the temporal
judge not to be heresy, tho the diocesan had certified it to be heresy,
the temporal judge might deliver the party imprisoned upon an
Habeas Corpus, as was done M. 5 E. 4. Rot. 143. B. R. in Key-
ser^s case.(o) and the party detaining him is punishable in
an action of false imprisonment, as was done in Warner^s [ 400 ]
case,(/;) M. \\ H. 7. Rot. 327. both which cases are at
large reported, Co. P. C. cap. 5. p. 42. and therefore in cases of such
return upon an Habeas Corpus, or justification by this act in false
imprisonment, the particular heresy must be set forth, what it is,
that the temporal judge may judge, whether it be heresy or no.
By this statute it appears, 1. That the ditjcesan might convict of
heresy, and thereupon the party convict be left to the secular power,
which settles the doubt raised by Fitzh. N. B. 269. 2. That he
might convict an heretic, so as to subject him to the punishment of
death not only in case of relapse after abjuration, but also in case of
refusal to abjure. 3. The power of convicting an heretic is not
limited to the diocesan only, but also to his commissary in order to
his execution by the secular power.
After this ensued the statute of 2 H. 5. cap. 7. against heretics and
LoJ/ards, and thereby it is enacted.
1. " That all temporal officers be sworn to destroy all heresies and
errors, commonly called Lollardy, and tliat they be assisting to the
ordinary, when required, at the ordinary's charge.
2. "That when persons are convict of heresy, and left to the
secular power by the ordinaries or their commissaries, their lands in
fee-simple shall after their death be forfeit to the king or lords, of
whom they are held, others than the ordinaries and commissaries
themselves, and all their goods.
3. " That the justices of the king's bench, of the peace, and
assize, shall have power to inquire of such errors and heresies called
Lollardy, and their abetters, iyc. and make out process of Capias
against them.
4. " That such Lollards and their indictments be de-
hvered over by indenture to the ordinaries or their commis- [ 401 ]
saries, who thereupon are to proceed to their acquittal or
conviction, but the indictment to be only as an information, not as
evidence against the oflender, but the ordinaries to commence their
process against them, as if there were no indictriient.
(0) Keijser^s heresy was, that being- excommunicated by the archbishop of Canter,
vry; he said, that notwithstanding that, he wns riot excommunicated before God, for his
corn yielded as well, as any of his neighbuurs, 10. H. 7. 17.
(p) Warner's licrcsy was, that he said he was not bound to pay tithes to the curate of
the parish, where he dwelt. 1 Rol. Rep. 110. 3 Co. Inst. 42.
401 HISTORIA PLACITORUM CORONiE.
5. " Piinisbtnent for escapes is by forfeiture of goods and seizure
of lauds till he returns;" and some other provisions.
This is the first law, that gave forfeiture of lands in fee-simple of
an heretic convict, and executed, and the first law, that settled the
forfeiture of their goods, tho forfeiture of goods were de facto used
before. (9')
Tlio in some respects it enlarged the ordinary's power, yet it may
seem some kind of curb upon tliem to have an indictment previous,
yet I find them not restrained from proceeding, tho there were no
such previous indictment.
Hitherto there was no limitation or restraint, what should be or
what should not be heresy, whereupon death might be inflicted, but
the ordinary's power was left arbitrary and unlimited therein.
By the statute of 25 H. 8. cap. 14. there was a great alteration
made as to the point of heresy.
1. The ordinaries were not to proceed against any for heresy with-
out presentment or indictment thereof before the king's justices, or
an accusation by two lawful witnesses at the least, and that before
any citation or process by the ordinary.
2. That persons convict by the ordinary of heresy, and refusing
to abjure, or having abjured relapsing, shall be burnt by the king's
writ de hserctico comburendo first had and obtained for the same.
3. Tho it do not positively limit what only shall be heresy, yet it
enacts what shall not be accounted heresy. 1. Speaking against the
authority of the pope. 2. Speaking against spiritual laws made by
the authority of the see of Rome repugnant to the laws of this realm,
or the king's prerogative, and indeed it was time to make
|] 402 j this provision, the papal authority being now in a great
measure taken away by act of parliament.
4. Persons accused of heresy shall and may be letten to bail either
by the ordinary, or in their default by two justices of the peace.
IV. By the statute of 31 ^. S. cap. 14. a farther alteration was
made touching heresy.
1. Six articles are "declared and enacted, 1. That in the sacrament
of the altar after consecration there remains no substance of bread
and wine, but the substance of Christ.
2. That communion in both kinds is not necessary ad salutem.
3. That priests may not marry by tlie law of God. 4. That vows
of chastity ought to be kept by the law of God. 5. That private
mass is necessary to be continued. 6. That auricular confession is
necessary to be retained and used.
2. That to preach or to declare, or hold opinion against the first
article touching transubstantiation shall be adjudged heresy, and the
persons convict thereof, their aiders, ^-c. convicted thereof in the form
underwritten shall be adjudged heretics, and suffer death by burning
without any benefit of abjuration, sanctuary, or clergy, and shall for-,
feit his lands to the king, as in case of high treason.
{(I) Co. P. C. 43.
HISTORIA PLACITORUM CORONA. 402
3. That if any openly preach against the last five articles, and
be thereof convict or attaint by the laws nnderwritten, every such
offender shall suffer death as a felon without benefit of clergy or sanc-
tuary.
4,' That if any person publish or declare his opinion against the
five articles last mentioned, he shall for the first offense forfeit his
goods, the profits of iiis lands during his life, and ecclesiastical pro-
motions, and he imprisoned at the king's will, and upon the second
conviction shall suffer as a felon without benefit of clergy.
5. The king is empowered to issue commissions directed to the
archbishop or bishop of the diocese, and the chancellor and others,
or three of them, whereof the archbishop or bishop, or chancellor to
be one, to take information by oath of twelve men, or the testimony
of two lawful persons of all heresies, Sf'C.
6. The ordinaries within their several jurisdictions to take
information of heresies, and justices of peace, 4'C. to take [403]
inquisitions touching heresies; these informations and inqui-
sitions to be certified to the commissioners above-mentioned.
7. The commissioners or any three of them to make process
against the offenders into all the shires of England and ^^ales, as in
case of felony, and upon their appearance shall have full power and
authority to hear and determine the said offenses according the laws
of this realm and this statute.
8. Commissioners or two of them have power to bail persons, ac-
cused, till trial.
9. No challenge to be admitted but for malice or enmity, trial of
foreign pleas by the commissioners, no eschetes to the lords, with
some other clauses.
This act, tho it doth not, in express terms, repeal the statute of
2 H. 5. yet it doth, in a great measure, alter it. 1. In point of juris-
diction; for, here the proceeding to judgment is to be by commis-
sioners under the great seal, and not by the ordinary or ecclesiastical
jurisdiction. 2. The offense of heresy now in a great measure is
made a secular offense, especially in the five last articles which are
made felony. 3. Tho the commissioners have power to proceed
upon accusations, as well as indictment, yet the trial of the offender
was to be by jury, and the words hear and determine, &;c. import
the same.
Thus the law stood until 1 E. &. with some small variations in
34 <§• 35 H. 8. cap. 1. but by the statute of 1 E. 6, cap. 12. all the
before-mentioned statutes, viz. 5 li. 2. 2 H. 4. 2 H. 5. 25 //. S. 31
H. 8. 35 H. 8. and all other statutes made in the time of Henry VIII.
concerning religion are repealed. (r)
(r) So that the punishment of heresy then stood as it was at common law before any
statute made against it,' notwithstanding which there were some examples in this reign
of persons burnt for heresy, viz. Joan Backer and George van Parre, wlio were put to
death much against the will of that good king by the over-persuasion of archbishop
Cranmer, fur which reason (as bishop Burnet remarks) what that archbishop afterwards
suffered in the succeeding reign was thought a just retaliation on him. Burnet's Hist.
of lieforination, To/. II. p. 112.
403 HISTORIA PLACITORUM CORONA.
By the statute of 1 <§• 2 P. S,^ M. cap. 6. the statutes of 5 7?. 2.
2 H. 4. and 2 H. 5. are revived: but the statutes in Henry VIII.'s
time, and repealed by 1 E. 6. stood still repealed, and thus
[404] they continued till 1 Eliz. and if there had needed any far-
ther repeal of the statutes of 25 and 31 H. 8. besides what
was done by 1 E. 6. yet the statute of 1 (§• 2 P. S,^ M. cup. 8. in fine
hath this clause, that was never repealed by the statute of 1 Eliz.
nor any other statute since made, viz. "That the ecclesiastical juris-
diction of archbishops, bishops and ordinaries be in the same state
for process of suits, punishments of crimes, and execution of censures
of the church, with knowledge of causes belonging to the same, and
as large in these points as the said jurisdiction was in the 20th year
of Henry VIII." which doubtless repealed all acts made between
20 H. 8. and 1 8^" 2 P. <§• M. in derogation or alteration of the eccle-
siastical jurisdiction, or the styles or forms of their proceeding by
Henry VIII. or Edward VI.
V. I come now to the time of queen Elizabeth. '■ " • '•
By the act of 1 Eliz. cap. 1. there are these alterations: 1. The
statutes of I S,^ 2 P. <§- M. cap. 6. 5 R.2.2 H. 4. 2 H. 5. are repealed,
so that now the whole jurisdiction touching heresy stands as it did at
common law, with such farther additions as are made by that statute
of 1 Eliz. 2. The queen, her heirs and successors to have power to
issue commissions under the great seal to exercise all jurisdictions
spiritual and ecclesiastical within this kingdom, and to visit, reform,
redress, order, correct, and amend all errors, heresies, schisms, S,'c.
which by any spiritual or ecclesiastical power can or may be law-
fully reformed. 3. That such commissioners shall not have power
to determine any matter to be heresy, but only such as have been
heretofore determined to be heresy: 1. By the authority of the
canonical scriptures. 2. Or by any of the first four general councils,
or any other general council, wherein the same was declared heresy
by the express and plain words of the said canonical scriptures.
•3. Or such as shall hereafter be determined heresy by parliament
with the assent of the clergy in their convocation.
Upon this statute these things are observable :
1. By this statute the ancient common law was revived for the
conviction of heretics,and delivering them over to the secular power,
which might at common law be done either in a provincial
[ 405 ] .council, or by the diocesan alone, and accordingly, it is said
Co. P. C. cap. 5.(.s) the conviction of heretics was practised
ill, the queen's time, but I find no particular instance thereof in the
queen's time,(^) but in the case of Legal, 9 Jac. it was so resolved'
by four judges, and accordingly put in ure, and upon such a convic-
tion before the diocesan a writ de /lasrelico comburendo might and
did issue in the cases o{ Legal and Wighlman convict oi Jirianisni
is) p. 40.
(<) Tliat is of a conviction in a provincial council, or before the diocesan alone,
for of convictions before the commissioners some instances are here mentioned by our
author.
I.
HISTORIA PLACITORUM CORONA.. 405
befjre the diocesan and left to the secular power, who were accord-
ingly burnt :(i<) vide Baker's Chronicle, p. 446.
2. There was another method of conviction of heresy, and there-
upon deUvering over to the secular power, and execution of the
offender by writ de hseretico comburendo, namely by sentence of the
commissioners for ecclesiastical causes instituted by the statute of
1 Eliz. but this takes not away the conviction of heresy by the dio-
cesan or in a provincial council, but these remain as they did at com-
mon law, and thus it was done 17 Eliz. upon John Peters and
Henry Dirwert,{x) Flemings, convict of heresy before the commis-
sioners for Jlnabaptism, and thereupon a writ de hseretico com-
burendo issued.
3, That this act restored the issuing of a writ de hseretico com-
burendo{ij) according to the course of the common law against a
man convict of heresy, and refusing to abjure, or having abjured
relapsed, and thereupon delivered to the secular power.
And note, that this writ is no writ of course, nor can the chan-
cellor or keeper issue this writ upon a signijicavit by the commis-
sioners or diocesan without a special warrant, for that the king
may see cause to suspend the issuing thereof, or wholly supersede
it, or pardon the sentence, for it may so fall out, that the diocesan
hath adjudged a thing to be heresy, or a party to be an
heretic, which in truth and reality is not so, or it may be the [ 406 J
party may retract, and so be capable of mercy.
But the course was for the diocesan alone, if the conviction were
singly before him, or for the diocesan with the consent of the com-
missioners, if the conviction were before them, by signijicavit under
the seal of the diocesaii to return the conviction into the chancery,
and then the same is brought before the king and his council, and
after deliberation by the king with his council, a special warrant
issues from the king by the advice of his council, to the chancellor
or keeper, together with the tenor of the writ de hseretico combu-
rendo expressed in the warrant, and commanding the chancellor or
keeper to issue it under the great seal, which warrant is filed for the
keeper's indemnity: this was the form which was used 17 Eliz. in
the case of the Jinabaptists above-named; and note, altho the con-
viction were before the commissioners, yet the diocesan was one of
the conunissioners, and his seal to the signijicavit, so that there
were the junctures of both authorities, viz. the authority of the dio-
cesan according to the course* of the common law, and of the com-
missioners according to the power given by the statute of 1 Eliz.
and we have reason to believe, that the subsequent convictions in
{ii) But yet ought not to have been so by law, according to tlie opinion of lord Coke,
for that the statute of 2 H. 4. cap. 15. which gave the writ de harelico comburendo was
repealed, and at common law no such writ lay upon a conviction by the ordinary, 5 Co.
Rep. 23. a. 12 Co. Rep. 5(i. 92.
{JC) Their names were John Wiehnacker and Hendrick Ter Wqort.
iy) Tlie act says notliing about this writ one way or other, but only repeals the
several statutes relating to heresy, and so leaves the matter, as it was at common law.
406 HISTORIA PLACITORUM CORONA.
the queen's time pursued this form, and possibly that of Legates in
9 Jac. might be in the same nature, the the resolution of the judges,
upon which it seems the process was formed, takes notice only of
the diocesan.
4. That the forfeiture of goods or lands by conviction of heresy is
by this act repealed.
5. Here is the first boundary, that was set to the extent of heresy
as to the matter thereof, what only shall be adjudged heresy ;(z)
and altho this clause refers expressly only to the commissioners, yet
it is to be the measure and rule for diocesans, and the convictions in
their proceedings against heretics.
But it is true, it is not so particular and certain, as might
[ 407 3 have been wished, for according to the inclination of the
judge possibly some would determine that to be heresy by
the canonical scriptures, which possibly is not at all heresy, nor con-
trary to the canonical scriptures but iiowsoever it brought heresy
to a greater certainty than before.
Upon this statute of 1 Eliz. these things seem to me to be true:
1. That the sig7iijicavit of the conviction of heresy ought to con-
tain, even at common law, the particular heresy, whereof the party
was convict, and without such particular signijicavit no writ de
hseretico comburendo ought to issue; and the reasons are, 1. Be-
cause it concerns the highest temporal interest that any man can
have, namely his life, and for this reason even in smaller temporal
concerns a general cause or return of heresy or criminousness is not
sufficient; it is not a sufficient cause of refusal or non-admission of
a clerk to allege, that he is crimiiiosus (§' non idonenSyOX that he is
schismuticus inveterutus 5 Co. Hep. 58 a Specofs case, and the
reason is very well given, coment que nappent al court la roygne a
determiner schismes ou heresies, uncore I'original cause del suit
esteant mafter, dont le court le roy ad conusance, le cause del
schisme ou heresie, purque le presentee est refuse, covient estre al-
ledge en certain al entent le court le roy poit consult ove divines a
scaver, si ceo soit schisme ou nemy; and upon the same reason it is,
that in Keyser^s case upon an Habeas Corpits, and fVarner's case
upon a false imprisonment, that altho the statute of 2 H, 4. .enable
the ordinary to arrest for heresy, it is not a sufficient return or justi-
fication to say the party was an heretic, or suspect of heresy, but he
must return the particular heresy, for which he was so arrested, that
the court may judge upon it; and tho the temporal court hath no
original cognizance of heresy, yet it being incident to a temporal in-
terest, namely the liberty of a man's person, the temporal court
shall judge, whether it be heresy or no;(*) and accordingly in
(«) And great cause there was for tliis limitation, as appears from the fore-mentioned
cases oi^ Keijser and Warner, and otiiors, 12 Cu, Hep. 58. aUho, as our author says, there
still is too ijreat a latitude left, since it is unavoidable, but difierent interpretations will
in many cases be put even ui)on scripture, so long as tiie use of reason and liberty of
thouglit continues.
(*) This is certainly agreeable to the law of the land, 2 Co. lustit. G15, 623. altho it
J
HISTORIA PLACITORUM CORONiE. 408
those cases they did adjudge that to be no heresy, which the
bishop returned as an heresy, and in one case the prisoner was
discharged, and in the other case recovered by an action of false
imprisonment. Co, P. C. cap. 5. 2. Altho heresy be a case of eccle-
siastical cognizance and jurisdiction, and as long as it only con-
cerns ecclesiastical censures, and (so far forth only) faith is to be
given to them, 'till reversed by appeal, yea altho it should in the
sentence itself most evidently appear, that it was not heresy, yet as
to the inflicting of death at common law they had no pow^r, but all
they could do was to commit him to the secular power, their busi-
ness was then at an end ; but now begins tlie concern of the secular
povver, and herein they were not, as lacqueys, only to follow what
the ecclesiastical judge had done, for now the life of a subject
was concerned either to be taken away or not, and that merely by
the secular power, and herein the secular power had a judgment of
discretion of their own, which they are to exercise, but yet cannot
do it, unless the special matter of the heresy be certified to them.
2. Admit a general certificate without shewing the particular cause
of heresy were good at common law, yet since the statute of 1 Eliz.
it must be particular, because an act of parliament, which belongs to
the interpretation of the common law, directs what shall be heresy
and what not, and the king and his council are to give the warrant
for issuing the writ, and therefore must be ascertained, whether it be
an heresy within the description of this act, and the chancellor or
keeper of the great seal is to affix the seal and issue the writ, and
therefore ought to be satisfied by the signjicavit, that it is an heresy
within that act, and if he be not, he is not to seal it, for it concerns
the life of a subject; these are not bare ministerial acts by the
king and his council or chancellor in subservience to theeccle- [409]]
siastical jurisdiction, but they are acts judicial, where they
are to exercise both a legal and well warranted discretionary judg-
ment, and therefore must have the cause before them upon the sig-
nijicavit, and not by a bare general story of a conviction of heresy,
and therefore if upon the return o{ the significavU, whereby the party
is convict and sentenced either as an obstinate or relapsed heretic, it
shall, by the particularity of the return, appear, that it is not heresy,
there ought no warrant to be granted for the issuing of the v/rit, and
be what the clergy have always disrelished, wlio never liked to submit their proceedings
to the judgment of the king's courts, or of any authority but what was ecclesiastical,
accordingly we find a decree of BonifaceY. " WJiereby all powers, lords temporal, and
rectors with their officers are forbid to judge or take cognizance of heresy, it being
merely ecclesiastical, or to refuse to execute the punishments enjoined by them, or any
way directly or indirectly to hinder their process or sentence under the pain of excom-
munication, which if they obstinately lie under for a year, they are to be condemned aa
heretics ;" Sixt. decretal. I. 5 tit. 2 cop. Inquisitionis ncgotium : this decree is con-
firmed by the general council of Constance, sess. 45. See the constitutions of arch-
bishop Boniface, cap. de impetranlibus prohibitiones, (Sec. cap. de malitia judicis
secularis, &c. cSj- cap. dc poena impedicntium, &,c. See also archbishop Bancroft's ob-
jections, 2 Co. Instil. GO I, 609, Sfc. Codex Leg. Ecclesiast. Anglic, p. 1066. Fref. to
Codex, p. VJ,
409 HISTORIA PLACITORUM CORONA.
if granted, yet the writ ought not to be sealed, and therefore the cer-
tificate or signijicavit must be special and certaip.(*)
Again, tiiis definition or circumscription of heresy is by an act of
parliament, and tho the matter of it, viz. Heresy, be of ecclesiastical
cognizance, yet the interpretation of the act of parliament is of a
temporal cognizance, especially where a temporal interest, and the
greatest temporal interest in the world, namely life, is concerned: we
have many acts of parliament, that concern matters of ecclesiastical
cognizance, as touching clergy and purgation, touching matrimony
and the prohibited degrees, yet when these acts of parliament come
to be expounded, the temporal judge hath the cognizance of them.
The statute of 2 H. 4. hath two notable clauses, one whereby the
ordinary hath power to arrest for heresy, there is in that clause no
express provision, that credence shall be given to the ordinary and
therefore if he arrest for that, which is not heresy, the arrest is un-
lawful, and as an incident to an interest at common law, z;/z. the
liberty of the subject, the temporal court hath power to determine,
whether it be heresy or not, as is above-shewn: the other clause is a
power committed to the ordinary to deliver over the party convict to
the sheritf to be executed without any writ de hseretico comburendo.
This was introductory of a new law, and therefore the sheritf or
officer might possibly scruple not only whether there were
[410] such a sentence, («) but whether the thing, for which the
party was condemned as an heretic, were really heresy; but
to avoid all difficulties of this kind this imusual clause is added, that
herein credence shall be given to the diocesan or his commissary.
We are here in the case of an act of parliament, an act that intro-
duceth a new circumscription of heresy, an act that concerns the life
of the subject, in a business, which after the ordinary hath passed his
sentence, is now wholly left to the king, who, tho he be supreme in
matters ecclesiastical as well as temporal, yet in the issuing of his
writ de hseretico comburendo is looked upon by the ecclesiastical
judge, as acting by his secular power, for that is the conclusion of the
sentence, niz, that tie be left to the secular power, in this he acts not
ministerially but judicially, and therefore upon all accounts must have
a certain return of the cause of the heresy, and if it shall appear to him,
or to the chancellor, that is to seal the writ, that the return contains
not any certainty of the heresy, or that which is returned as an he-
resy, be not such as is described by the statute of 1 Eliz. no writ de
hseretico comburendo ought to issue, whether the conviction be by
the high commission, or diocesan, or convocation. (6)
Blacks. Com. Lib. iv. ch. 4. p. 43, 44. &c. 1 Hawk. P. C. ch. 23,
(*) The same reasoning holds in granting the writ de excommunicato capiendo, for
that, affecting tlie liberty of a man's person, concerns a temporal interest.
(») Tiiere could be no room for this scruple, because, unless the sheriff was present at ,
pronouncing the sentence, the ordinary had no ])ower by 2 //. 4. to deliver the heretic to
the sheriff", nor could the shcriiF proceed to execute him without a writ.
(6) Since our author wrote, ahlio no alteration has been made in tlie definition of he-
resy, whicli still subsists upon the loot of the statute of 1 Eliz. yet tlie severer part of the
punishment is taken away, and the doubt removed, whether the party be liable to a writ
HISTORIA PLACITORUxM CORONA. 411
CHAPTER XXXI.
CONCERNING HOMICIDE AND FIRST OF SELF-KILLING OR FELO DE SE:
Having gone thro the pleas of the crown touching high treason, mis-
prision-of treason, and petit treason, the order that I have proposed
leads me to consider of felony, S,'C. and these are of two kinds, felonies
by the common law, and felonies made such by act of parliament.
Felonies by common law are such, as either concern the taking
away of life, or concern the taking away of goods, or concern the
habitation, or concern the obstruction of the execution of justice in
criminal and capital causes, as escapes, rescues, ^^c.
In the first place therefore come to be considered those felonies or
offenses, that relate to life or the taking away thereof without due
process of law; and this again is either that, which concerns the loss
of life happening to a man's self, or happening to another.
As to the first of these, namely the consideration of that offense or
crime, that concerns a man's own Ufe, where there is no other offen-
der but the sufferer, this falls under these two heads or divisions.
I.-Homicidiurn sui-ipsius, or felony of a man's self
II. Infortunium, or pure accident, or at least, where no other
reasonable creature is concerned in the effecting of it.
Of the former of these in this chapter.
Felo de se or suicide is, where a man of the age of discretion, and
compos mentis, voluntarily kills himself by stabbing, poison, or any
other way.
, No man hath the absolute interest of himself, but 1. God almighty
Kath an interest and propriety in him, and therefore self-
murder is a sin against God. 2. The king hath an interest [ 412 ]]
in him, and therefore the inquisition in case of self-murder
is felonicl Sr voluntarit seipsum, interfecit fy murderavit contra
paceni domini regis.
Co. Lift. § 194. fol. 127. a. M. 11. Jac. Wright's case, a man to
the itUent to make himself impotent, and thereby to have the more
colour to beg, caused another to strike off his hand, for this they were
both indicted, fined and ransomed.
de h<Eretico comburendo, for by 29 Car. 2. cap. 9. this writ and all proceedings thereon,
and all capital punishments in pursuance of ecclesiastical censures are utterly abolished
and taken away, so that heresy is now punishable only with excommunication, (except
in the case of a clergyman, who is also to be deprived and degraded;) the civil effects of
which are, that the party communicated is disabled from making a will. Swinb. of Wills,
part. 2. § 22. or from suing for any debt or legacy, Ibid. part. 5. § 6. or doing any legal
act, Co. Lit. 133. b. and if the party do not submit within forty days after publication,
upon a signijicavit into Chancery, there issues a writ de excommunicate capiendo, by
virtue of which he may be arrested and detained in prison, till he do submit; so that
there seems now to he no material difference between a simple heretic and a relapsed
heretic, for excommunication not being a definitive sentence, but only a process for con-
tempt to inforce obedience to the sentence, whenever the party complies with it by re-
tracting, doing penance, S^c. altho a relapsed heretic, he' is to be absolved.
VOL. I.— 36
412 HISTORIA PLACITORUM CORONA.
A man or woman as to capital offenses is of the age of discretion
at fourteen years old: vide qiise supra dicta sunt cap. 3.
Compos inentis.
If he lose his memory by sickness, infirmity, or accident, and kills
himself he is woifelo de se, neither can he be said to commit murder
upon himself or any other.
If a man gives himself a mortal stroke, while he is non compos,
and recovers his understanding, and then dies, he is wo{felod.ese,{oT
tho the death complete the homicide, the act must be that, which
makes the offense.
P. 22 E. 3. Coi'on. 244. Co. P. C. 54. vide supra cap. 4. who
shall be said non compos.
It is not every melancholy or hypochondriacal distemper, that de-
nominates a man non compos, for there are few, who commit this
offense, but are under such infirmities, but it must be such an aliena-
tion of mind, that renders them to be madmen or frantic, or destitute
of the use of reason: a lunatic killing himself in the fit of Junacy is
notye/o ^/e 5e, otherwise it is, if it be at another time.
What a voluntary killing.
If a man voluntarily give himself a mortal wound, and die within
a year and a day of that wound, he is felo de se, and he cannot purge
the crime, nor the forfeiture inflicted by the law, by his repenting of
what he had done. 8 E. 4. 4.
It must be simply voluntary, and with an intent to kill himself.
If ./5. with an intent to prevent a gangrene beginning in his hand
doth without any advice cut off his hand, by which he dies,
r 413 3 he is not thereby felo de se for tho it was a voluntary act,
yet it was not with an intent to kill himself.
It is said Co. P. C. p. 54. and by Mr. Ballon, cap. 92., (a) that if ^.
gives P. a stroke, that he falls to the ground, B. draws his knife and
holds it up for his own defense, ^. in. haste falling upon P. to kill
him falls upon the knife, whereby he is wounded to death, #/?. is felo
de se, and for that they cite 44 E. 3. 44. 44 ,/iss. 17. where indeed it
is adjudged, and that rightly, that P. is not guilty, and shall not for-
feit his goods, and that it is not barely se defendendo, for he did not
strike, only held up his knife, and so is simply not guilty; and all that
Knivett says is, Est trove, que le mort occise lui rnesme, and ad-
judged that P. is not guilty, nor his goods forfeit: but Knivett says
not, that ^^. is felo de se, neither indeed is he, but it is only per infor-
tuniu?n.
But i( ^i. had stricken at P. with a knife intending to kill him, and
missing P. had stricken himself, and killed himself, there he had
been Jelo de se, because that act, whereby he intended to murder P.
shall have the same construction, if it kill himself or any other per-,
son, as it should have done, if it had taken its effect upon P. de quo
infra.
Touching the forfeiture of Felo de se.
(a) New Edit. 1727. ca^. 144.
1
t
HISTORIA PLACITORUM CORONA. 413
He doth not forfeit his lands nor his wife's dower.
But he doth forfeit his goods and chattels.
As to the relation of the forfeiture.
Baron and feme joint purchasers of a term for years, the husband
drowns himself, the lease is forfeited, and the wife surviving shall not
hold it against the king or almoner, Ploicd. Com. 260. b. Dy. lOS.
Dame Hale's case, in which all the judges agreed, but seem to inti-
mate different reasons: Weston held the relation was only to the
death, but the title of the king and a common person coming toge-
ther, the king's title shall be preferred, but yet they concluded, that
the forfeiture relates to the first act, whereby the felony was commits
ted, namely the throwing himself into the water, and so the
king's title commenced in the life of the husband, and [ 414 ~\
amounted to a forfeiture in his life-time, when bylaw it was
in his power, either by his disposal or forfeiture, as by outlawry, to
bind the interest of the wife, and therefore they say, that if a villain
give himself a mortal wound, and the lord seize the goods, and then
the villain die of the wound, the king shall have the goods against
the lord, and with this agrees Littleton, 8 E. 4. 4.
That the law was well resolved in that case I do not doubt, but I
am not satisfied, that the relation of the forfeiture is to the time of
the stroke to all purposes, no more than in case of another felony,
for suppose a man should give himself a mortal stroke and live eleven
months after, how shall he support himself and his family?
But whereas in other cases of other felonies the forfeiture as to
goods relates neither to the stroke, nor to the death, but to the convic-
tion, here the forfeiture relates not barely to the presentment or
inquisition, but to the death in case of a/e/o de se, for being his own
executioner he prevents any formal conviction, as in other felonies. ■
But yet in order to this forfeiture it is necessary, that there should
be a record to entitle the king, viz. an inquisition.
Inquisitions therefore in this case are of two kinds, viz. if the body
cannot be seen, then it is inquisible before the justices of oyer and
terminer, yea or before the justices of peace of the county, for it
is a felony, and within the extent of their commission, H. 37 Eliz.
B. R. Langhton's case, Co. P. C. p. 55., (6) and accordingly adjudged.
M. 1656. in Greeve's case.
And so if an indictment of felony be before commissioners o{ oyer
and terminer or goal-delivery, Ǥ'C. and ^.fiigam, fecit be presented,
if process be made against those, that have the goods, the flight may
be traversed, for it is but an inquest of office, and shall not conclude.
47 E. 3. 26. :
But it is there held, that if an inquisition be taken before the coro->
ner super visum corporis, that a man is felo de se, that inquisition
shall be conclusive, and is not traversable by the executors or ad-
ministrators of the deceased, Co. P. C.p. 55. and the like
seems to be held by Stamford, P. C. p. 183. b. where a [415 ]
fugani fecit is presented before the coroner super visum
{b) In Margine.
415 HISTORIA PLACITORUM CORONA.
corporis, where it is found, that a murder was committed, and the
murderer fled; and yet (he offender himself shall be received to plead
not guilty to the indictment or inquisition before the coroner, as by
daily experience it appears, tho Stamford makes it there a question
whether the fit g am fee il be traversable.
And therefore I remember in the king's bench in the case o{ Bar-
clay it was ruled, that in case of an inquest before the coroner stiper
visum corporis, wherein the party was found y^/o de se, the inquisi-
tion was quashed in the king's bench, because upon examination it
appeared, that the coroner refused to let the jury hear .witness on the
part of him that was dead, to prove that he was not felo de se, for
the coroner ought to hear evidence on both sides, partly because it
was doubted, that the inquisition in this case was conclusive, and a
conviction, and not traversable, and the court of king's bench, who
are the sovereign coroner, did set aside that inquisition, and order
the coroner to inquire de novo super visum, corporis, because the body
was yet to be viewed. H. 1658. B. R. Barclay'' s case.(c)
If an inquisition be taken before the coxonex super visum corporis,
whereby the party dead is found to have died per infortunium, if it
is suggested on the part of the king or almoner, that he was felo de
se, and in the king's bench a writ of melius inqiiirendum is prayed
to the sheriff", it seems j^t ought not to be granted, because the coroner
is theproper officer, and accordingly it was denied in Pasch. 24Car. 2.
and if granted, and an inquisition taken, it hath been held vo\d{d) by
the statute of 28 E. 3. cap 9. tho many precedents of such writs are
extant. H. 37 Eliz. B. R. Croke,7i. 13, Harks Ion's case, F. N. B.
144, 250.(<>)
But it seems, if the coroner's inquisition omit the finding of the
goods of the/e/o de se, that may be supplied by a writ of melius' in-
quire7idum directed to the sheriff, for that is not witiiin the statute of
2Q E. 3.
But whensoever any inquisition is taken by the sheriff by
["416 3 ^ writ or con\m\s,?\o\\o{ melius inquirendum, without ques-
tion that inquisition is traversable.
If an inquisition be taken before the coroner super visum corporis
de villis Ji. B. C. and D. and says not de quatuor villatis proximo
adjacent, according to the statute of 4 E. 1. de coro7iatoribus,{f)
yet it hath been held the inquisition is good, because the statute is
only directory. H. 1658. B. R. Barclay's case.(,g')
But altho an inquisition taken before the coYon*^,x super visuvi cor-
poris in the point oi felo de se is of great authority and a sufficient
record, whereupon process may be made against those that detain
the goods found in the inquisition, yet it seems to me, that it is tra-
versable in the very point so found, for it is but an inquest of office,
and whereupon the party grieved thereby can have no attaint; but
• (c) 2 Sid. 90. 101. id) 2 Ander. 204.
(r) Edit. 1718. jj. 322,554.
( /") Tliis statute was but an afFirmancc oftlie common law, Brit. 7. a.
(g) 2 Std, 144. See also the King versus Crosse, Sfc. 1 Sid. 204.
HISTORIA PLACITORUM CORONiE. 416
otherwise it is of a presentment oi ^ fugam fecit before the coroner.
8 E. 4 4.
The coroner hath power super visum corporis to inquire touching
the murder or interfection of the party that is dead, and also of all
accessaries before, and of their flight, but not of accessaries after the
fact. 4 H. 7. IS. b.{h), yet the party presented before the coroner to
be principal or accessary before is not convict by such presentment,
but shall be arraigned and plead to the felony, and I know no diff"er-
ence between that and this; and it seems unreasonable, that by an
inquest taken against a dead person, whereby he is found /e/o de sCy
that the executors, administrators, legatees, and children of the de-
ceased should be concluded, and lose the goods of the deceased with-
out an answer, by an inqusition which may be taken by
the coroner behind their backs, and I find no book express [417 ]
in it, but the opinion of my lord Coke, P. C. 55.,{i) for the
doubt of Mr. Stamford, P. C 1S3. is only upon a fugam fecit, and
in the case of Barclay 1658, the Court of King's Bench were not
satisfied, that it was conclusive.
P. 45 E. 3. inter communia scaccarii there was a presentment
(before the coroner, as it seems, but it is not so expressed in the
record) that Walter Page felonice se siibmersit, <§' sic felo de se
devenit, ^nd thereupon a writ issued out of the Exchequer to inquire
what debts were due to Walter Page ; the sheriff's of London, took
an inquisition, whereby it was found that Simon Long of Essex was
indebted to Walter Page at the time of his death in 40/. by bill,
thereupon process issued against Simon Long to answer the debt,
who came in and confessed he owed the debt to Walter Page, dicit
tamen, quod domino regi reddere non debet, quia qualitercunque
praesentatum fuit, quod dictus Walteriis Page nequiter and felonice
se submersit, ut praedicitur, idem Walteriis Page interfectus fuit
per emulos suos, & per ipsos in quodam fossato in loco vocato the
wilds in com. Surrey projectus, absque hoc, quod ipse aliqualiter
se submersit; and thereupon isssue was joined, and by a jury of
Surrey found, quod dictus Walterus Page fuit interfectus per emu-
los suos, & in fossato projectus, absque hoc, quod ipse aliqualiter se .
submersit.
There a traverse was taken to the presentment, which nfiust needs
be before the coroner by the whole circumstance of the case, tho the
coroner be not mentioned in the record.
And with this agrees the book of 8 E. 4. 4. that the finding of
one to he felo de se is traversable, tho found before the coroner; but
{h) This case says notliing directly of the coroner's power to inquire of accessaries, yet
by resolvinj;;, that in case ot' an accessary before the iact presented before tlie coroner,
it it was found he fled, lie should forfeit iiis groods, but not so in case of an accessary after
the fact, it seems strongly to imply, that the coroner had jurisdiction in the one case, but
not in the otiier; and Stamford says, tiiat the judgres in that case of 4 H. 7. abridged the
coroner of a power, which lie would have usurped in inquiring of those, who were acces-
saries after the murder. See to this purpose Dalison 32,
(i) See also to the same purpose Hob. 317.
417 HISTORIA PLACITORUM CORONA.
indeed it holds, that a fugam fecit presented before the coroner is
not traversable, quia aimtient ley de corone.{k) .
If there be two coroners in a county, the outlawry must be given
by both, ullagatns est per judicium coronatorum, yet one of them
may take an inquisition super visum co?y)oris, M. 6 4* 7 Eliz.C. B.{1)
By the statute of 3 H. 7. cap. 1. the coroner ought to re-
{[418]] turn and certify the inquisition taken by him to the next
goal-delivery, or into the king's bench.
And thus far touching felodese and his forfeiture.
There is another kind of death of a man, which may be consider-
able in this place, namely the death of a manner infortunium, and/
this is of two kinds, viz.
1. Where one man is the cause of another man's death withoift
any ill-intent, and by misfortune: of this I shall treat under the dis-
tribution of homicide.
2. When a man comes to an untimely end, where no other rea-
sonable creature concnrs to it, and this is properly per infortunium.
As where a man falls from an horse, or house, or boat, or into a
pit, or a tree or tile fall upon him and kill him, or is killed by a beast,
in this case the coroner ought to take an inquiry super visum cor-
poris, and also of the manner and means, how he came by his death,
and of the thing, whereby it happened, and of the value thereof, be-
cause in many cases there is a forfeit belonging to the king as a deo-
dand, whereof in the next chapter.[l]
(A-) See Slamf. Prerog. 46. b. (I) See Hob. 70.
[1] By 4 Geo. IV. c. 52, s. 1, it shall not be lawful for any coroner, or other officer
having authority to hold inquests, to issue any warrant or other process directing the
interment of tiic remains of persons against whom a finding of fclo de se shall be had,
in any public higliway; but such coroner or other officer shall give directions for the
private interment of the remains of such person felo de se, without any stake being
driven through the body of such person, in the church-yard, or other burial-ground of
the parish or place in which the remains of such person might, by the laws or customs
of England, be interred, if the verdict of felo de se had not been found against such
person, such interment to be made within twenty-four hours fi^om the finding of the
inquisition, and to take place between the hours of nine and twelve at nigiit. Proviso
not to authorize the performing of any of the rites of Christian burial on the interment
of the remains of any such person, nor to alter the laws or usages relating to the
burial of such person, except so far as relates to the interment of such remains in such
church-yard or burial-ground at such time and in such manner.
By self-murder all the chattels, real and personal, which the felo de se has in his own
right are forfeited, and also all chattels real whereof he is possessed either jointly with
his wife or in her right, and also all bonds and other personal things in action belonging
solely to himself, and also all personal things in action, and, as some say, entire chattels
in possession to which he was entitled jointly with another, on any account except that
of merchandise. But it is said thut he shall forfeit a moiety only of such joint chattels
as may be severed, and nothing at all of what he was possessed of as executor or ad-
ministrator. His lands of inheritance are not forfeited, nor his wife barred of dower.
No part of his personal estate vests in the king before the self-murder is found by some
inquisition. But after inquisition it is forfeited from the time the act done. 4 Bl,
Com. 190. n. 22. Stephens, C. L. 145-7. See post, ch. 32, note.
Suicide consists in a man's deliberately putting an end to his own existence, or com-
mitting any unlawful malicious act, the consequence of wliich is his own death — as if
HISTORIA PLACITORUM CORONA. 418
attempting to kill another he runs upon his antagonist's sword, or shooting at another the
gun bursals and kills himself. 4 Bl. Com. 189.
But the act must be strictly his own, for if a man desire another to kill him, who com-
plies, the person killed is noifelo de se.though the killer is a murderer. 1 Hawk. c. 27, s. 6.
1 Russell, 424, 426.
So he must be of years of discretion, and in his senses. 4 Bl. C. 189.
There may be an accessary before the fact to self-murder, for if a man persuades
another to kill himself, and he does so, the adviser is guilty of murder, as an accessary
before the fact. 4 Bl. C. 189. Keilw. 136. Rex v. Russell, R. Sf M. C. C. R. 356. Vaux's
Case, 4 Rep. 44. b.
Where two persons agree to die together, and one of them, at the persuasion of the
other, buys poison and mixes it in a potion, and both drink of it, and he who bought
and made the potion survives by using proper remedies, and tlie other dies; it is said to
be the better opinion, that he who dies shall be adjudged a felo de se, because all that
happened was originally owing to his own wicked purpose, and the other only put it in
his power to execute it in that particular manner. 1 Hawk. P. C. c. 27, «. 6. Keilw. 136.
Moor, Ibi.
If a man, intending to shoot at another, mortally wound himself by the bursting of
the gun, he is felo dese; his own death being the consequence of an unlawful, ma-
licious act towards another. It has also been said, that if A. strike B. to the ground,
and B. draw a knife and hold it up for his own defence, and A. in haste falling upon B.
to kill him, fall upon tiie knife and be thereby killed, A. is felo de se; 3 Inst. 54. Dalt.
c. 144; but this has been doubted. 1 Hawkins, F. C. c. 27, s 4.
A husband and wife being in extreme poverty and great distress of mind, the husband
said, " I am weary of life, and will destroy myself;" upon which the wife replied, " If
you do, I will too." The man bought some poison, mixed it with some drink, and they
both partook of it. The husband died ; but the wife, by drinking salad-oil, which
caused sickness, recovered, and was tried for the murder of her husband, and acquitted ;
but solely on the ground that, being the wife of the deceased, she was under his con-
trol ; and inasmucli as the proposal to commit suicide had been first suggested by him,
it was considered that she was not a free agent, and therefore the jury, under the direc-
tion of the judge who tried the case, pronounced a verdict of not guilty. Anonymous
referred to in Reg. v. Allison, 8 C. Sf F. 418. Maore, 754. 1 Russ. on C. 508.
Hawkins speaks with some warmth against an unaccountable notion, which he says
prevailed even in his time, that every one who kills himself must be non compos of
course; because it is said to be impossible that a man in his senses should do a thing so
contrary to nature and all sense and reason. But he argues, that if this doctrine were
allowable, it might be applied in excuse of many other crimes as well as tiiis; as, for
instance, that of a mother murdering her child, which is also against nature and reason;
and this consideration, instead of being the highest aggravation of a crime, would make
it no crime at all ; for it is certain a person non compos mentis can be guilty of no crime.
1 Hawk. c. 27, s. 3.
If one encourages another to commit suicide, and is present abetting him while he
does 60, such person is guilty of murder as a principal; and if two encourage each
other to murder themselves, and one does so, the other being present, but failing in the
attempt on himself, the latter is a principal in the murder of the first; but if it be un-
certain whether the deceased really killed himself, or whether he came to his death by
accident before the moment when he meant to destroy himself, it will not be murder in
either. R. v. Dyson, R. Sf R. C. C. 523. R. v. Allison, 8 C. Sf P. 418. See Post, Chap.
34, Note.
419 HISTORIA PLACITORUM CORON.^.
CHAPTER XXXII.
OF UEODANDS.
Regularly that moveable good, that brings a man to an untimely
death, is forfeit to the king, and it is usually granted by the king to
his almoner to distribute in charitable uses.
But they are not forfeit till the death be found, which is regularly
by the coroner, and may be before the commissioners of goal-delivery,
oyer and terminer, or of the peace, if omitted by the coroner, and
hence it is, that these goods, as neither the goods of felons of them-
selves, felons and other outlawed persons, cannot be claimed by pre-
scription, because there must appear a title to them by matter of
record, before they are forfeited.
Upon the d6ath of a man by misadventure, &cc. the inquisition
ought to inquire of the goods, that occasioned the death, and the
value of them, and the Villafa, where the n>ischance happened,
shall be charged with process for the said goods or their value, tho
they were not delivered to them,(«) 3 E. 3. Cor. 298.
And this is the reason, that in every indictment of murder, man-
slaughter, <5'C. the indictment finding, that he was killed with a
sword, staff, 4'C. ought to find also the price, viz. 5 solidorum, be-
cause the king is entitled to that instrument, whereby the party was
killed, or the. value thereof, &nd that altho it were the sword of
another man, and not his, that gave the stroke, Co. P. C. 57, 58. tho
this doth not vitiate the indictment as to the offense itself, tho the
price be omitted.
. Deodands are of two natures: 1. Such as do mover e ad
r 420 ] mortem. 2. Such as, tho they are qidescentia, yet occasion
the party's death: v/flfe statute 4 E. 1. de officio coronatoris.
1. Things moving to death: as if a beast kill a man, 8 E. 2. Co-
ron. 403. if a man be cutting of a tree, and the tree fall upon another
tree and break down a limb, which falls upon a man and kills him,
botli the limb, and the tree that fell, are deodands, 8 E. 2. Co-
ron. 398.
If a man be driving of a cart, and the cart fall and kill a man, the
cart and horses are a deodand. 8 E. 2. Coron. 388. and so if a cart
run over a man and kill him, the cart and horses are forfeit, 8 E. 2.
Coron. 403. 3 E. 3. Coron. 326, 342. ((^) so if tlie timber that hangs a
bell, fall and kill a man, the timber and bell are both forfeit. (c)
(rt) This case is cited from an Iter, by Fitzherbert, who adds at the end of it, quod
mirum.
(b) A cart met a wag-jE^on loaded upon the road, and the cart endeavouring to pass by
the wajTgon, was driven ui)on an Iiiffh bank and over-turned, and threw a person, that was
in the cart, just before tlic wheels of the waggon, and the vvagfjTon ran over him and liild
him; it was resolved in tliis case in the Jiorne circuit by Pollexfen and Gregory, tiiat the
cart, wapjjon, loading, and all the horses were deodands, because they all moved ad Jftor-
te7n. 1 Salk. 220.
(c) 8 E. 2. Corone 405. vide contra Rex versus Crosse, Sfc. 1 Sid. 207.
HISTORIA PLACITORUM CORONA. 420
If a man in watering his horse is drowned, the horse is a deodand.
8 E. 2. Coron. 401.
If a man fall into the water, and the water carry him under the
wheel of a mill, whereby he is killed, the wheel is forfeited, but not
the miW. 8 E. 2.. Coron. 389.
If a weight of earth fall upon a worker in a mine and kill him,
the weight of earth is forfeit, not the whole mine. 12 B. 2. For-
feiture 20,
A man falls from his horse against a trunk, whereof he dies, the
horse is forfeit as a deodand, but not the trunk. 3 E. 3. Coron. 341.
And yet I find strong authority, that in that case the horse is not
forfeited, unless he throw his rider.
Clans. 5. E. 3. pai^t 2. m. 9. It was found by inquisition, " Quod
Willielmus Daventrise in parochia beatse Murix Strond in com.
Middlesex., cum ad-aquavit quendam equum magistri sui, dictusque
Willielmus redeundo de eodem equo per infortunium cecidit, & cum
eodem eqno per amicos suos semivivus deductus fnit ad hospitium
praedicti magistri sui apud Fleelstreet in suburbio London,
& ibidem languidus vixit usque occasum solis, quo tempore [ 421 ]
obiit ex casu praedicto; & quod prsedictus equus tempore
casus prsedicti per aliquem vel aliquam non fuit perterritus, per quod
habuit occasionem recalcitrandi.
This inquisition being removed into the chancery by Certiorari,
thereupon it was adjudged coram rege 4* concilio, quod equus prse-
diclus lanquam deodand' regi in hoc casu non debet adjudicari,^\\^
thereupon a writ issues to the sheritls and coroners of London recit-
ing the inquisition: " Jamque dicta certificatione coram nobis & con-
cilio nostro inspecta & plenius examinata, nobis &. dicto concilio nos-
tro videtur, quod equus praedictus tanquam deodand' nobis in hoc
casu non debet adjiidicari," commands the sheriff and coroners,
" quod exactionem, quam Johanni Bleburgh (the master of the horse)
vel plegiis, vel manucaptoribus suis in hac parte pro equo proedicto
vel ejus pretio nobis tanquam deodand' reddend' fecistis, supersede-
atis omnino & districtionem in hac parte factam sine dilatione relax-
etis." 7! R. apud Guildford 18 Novemb.
Which judgment is of greater weight, than any above cited, and
may be a great guide in cases of this nature, and therefore I have
cited it at large: 1. It is a resolution subsequent to all those judgments,
that are above-raentiond, for the last of them is the 3 E. 3. and this
is 5 E. 3. Again, 2. It is a solemn judgment given in Chancery coram
rege S,' concilio upon great examination, and the whole case stated in
the inquisition, and every man knows, that understands any thing
of records of those times, that coram rege 8," concilio was the king's
legal council, namely the Chancellor, Treasurer, Keeper of the Privy
Seal, justices of the one bench and the other, chancellor and barons
of the Exchequer: these usually met in chancery upon such occasions
under the style of co?iC27n/m.
3. It is a judgment given by the king and council against the for-
feiture, the whole case appearing upon the inquisition, which is of
421 HISTORIA PLACITORUM CORONiE.
greater moment, than a judgment given for the king, because given
by liimself and his officers against his own interest.
2. Now touching deodands of things not moveable.
[^422 ] If a man be drowned in a pit, tho the pit cannot be for-
feited, the coroner may charge the township to stop the pit,
and make entry thereof in his roils; and if it be not done before the
next eyre or goal-dehvery, the township shall be amerced. 8. E. 2.
Coron. 416.
If a man falls from a hay-rick, whereby he dies, it is said {noia,
not adjudged) that it shall be forfeit. 3 E. 3. Coron. 348.
If a man be getting up a cart by the wheel to gather plums, and
neither the cart nor horses moving, the man falls and dies, neither the
cart nor horses are forfeit, but only the wheel. 8 E. 2. Coron. 409.
It seems, that if a man be under the age of fourteen years, and falls
from a cart or horse, it shall not be a deodand, because he was not
of discretion to look to himself; but if a horse, bull, or the like kill
him, or if a cart run over him, there it shall be a deodand 8 E. 2.
Coron. 389. StamforcTs P. Cor. 21. a. Co. P. C. p. 57. for there it
shall be imputed to the neglect of the keeper of the goods, that did
the mischief, and so it is, if a tree fall upon one within the age of
discretion, it is a deodand.
Touching deodands in ships or boats, these things are observable:
1. If a ship or boat be laden with merchandize, tho it fall out that
a man be killed by the motion of the ship or boat, yet the merchan-
dize are no deodand, tho it be in the fresh water; but if any particular
merchandize fall upon a party, whereby he dies, that particular
merchandize shall be a deodand, and not the ship. Britton, cap. 1.
de office de coroner, § 13 <§' 14.
2. If a ship or vessel be sailing upon the sea, and a person falls out
of the ship and is drowned, the ship is no deodand.
By the antient constitutions of the admiralty it seems, that if a man
were drowned upon the sea by falling off from the ship under sail,
there was no deodand due, nor if he died by the fall of a mast or sail-
yard, or otherwise; but indeed in the articles of inquiry in the court
of admiralty, mentiond in the black book of the admiralty, one of
the articles is to inquire of them, that take any deodands,
[ 423 ] besides the admiral of any gold, silver or jewels found upon
any man slain upon the sea, drowned in the sea, or slain
with a mast in the ship, or with the yard of the ship, or with any
other thing, which is the cause of the death of any man, that in such
case appurtient al admiral per prendre and administre per I'alme, ce
quest mort, le moiety, & I'autre moiety a doner al feme celui, quest
mort,ses inlans, freres au soers,sil ad aucunes: but certainly this never
obtaind, for without question the goods of the deceased were no
deodands, but only the goods that moved to his death.
Rot. Par. 51 E. 3. n. 73. The commons pray, Que come il ad un
custome use parmy cest njalme, que si ascun home ou garson eschie
hors de ascun niefe, batelle, ou autre vessel en le mere, haven, ou
auire ewe, &, soil pcrisse, le dit vessel ud estre forfeite au roy, ou
HISTORIA PLACITORUM CORONA. 423
autres seigneurs de franchises, to the great prejudice of mariners and
shipping, and tiierefore pray, que nul neife, batell, ne autre vessel
soil forfeitable desormes pur le cause avant dit.
Resp. En le mere ne doit pes deodand estre ajugge, mes quant al
ewe fresh le roy ent ferra sa grace, on lui pleyst.
The like petitions were renewed Rot. Par. 1 H. 4. n. 154. 1 H. 5.
n. 35. 14 H, 6. n. 2Q. but tiiey obtained no other answer, than that
the law be observed.
Yet that answer in 51 E. 3. is a sufficient declaration, that no deo-
dand is to be upon such a death happening upon the sea, and with
this difference touching the forfeiture of a ship or other thing, as
deodands in mari 4" in aqua diilci, agrees Bract. Lib. III. cap. 5.
p. 122, and cup. 17. p. 136. in fine, viz. that de submersis in aqua
dulci batelli, de quibus tales submersi fuerunt, apprecieiUur, sed non
in mari, nee sunt deodanda ex infortunio in mari.
And with the same agrees Fleta. Lib. I. cap. 25, §. 9. de submer-
sis, si de molendino ceciderit vel carecta vel de batello, quamvis car-
catis, duni tamen in acqua dulci, secus quam in falsa, and goes far-
ther, but too far, viz. that the vessel with its lading, and the cart
with its lading, and the mill, with all that is moveable in it, are deo-
datids.
But now, what shall be said the sea or salt water?
My lord Coke, ubi supra, viz. p. 58. saith,and that truly, [ 424 ~\
the arm of the sea is included herein; and by the book of
22 Jissize, j)l. 93. so far as the sea flows and reflows is an arm of
the sea.
And thus far of deodands.
I shall only add this one thing more relating to the coroner's office
touching those that come to a violent death de subito mortuis: if the
township bury the body before the coroner be sent for, the township
shall be amerced; and if the coroner come not to make his inquiry
upon notice given, he shall be fined in eyre, or in the king's bench,
or before the justices of goal-delivery. [1]
[1] By deodand, is meant whatever personal chattel is the immediate occasion of the
death of any reasonable creature; which is forfeited to the king to be applied to pious
uses, and distributed in alms by his high almoner: though formerly destined to a more
religious purpose. It seems to have been originally designed, in the days of Catho-
licity, as an expiation for the souls of such as were snatched away by sudden death,
and for that purpose ought properly to have been given to the church ; in the same
manner as the apparel of a stranger, who was found dead, was applied to purchase
masses for the good of his soul. And this may account for that rule of law, that no deo-
dand is due where an infant under the age of discretion is killed by a fall froin a cart, a
horse, or the like, not being in motion; whereas if an adult person falls from thence, and
is killed, the thing is certainly forfeited. For the reason given by Sir Matthew Hale,
(ante. p. 422,) seems to be very inadequate, viz. because an infant is not able to take care
of himsiflf; lor why should the owner save his forfeiture on account of the imbecility of
the child, wiiich ought to have made him more cautious to prevent any accident of mis-
chief? The true ground of this rule seems rather to have been, that the child, by reason
of its want of discretion, was presumed incapable of actual sin, and tfierefore needed rio
deodand to purchase propitiatory masses; but every adult, who died in actual sin, stood
in need of such atonement, according to the humane belief of the founders of the
424 HISTORTA PLACITORUM CORONA.
English law. 1 Blac. Comm. 300. 301. and note (21) in 2lst Land. Ed. 1844. 2 Steph.
Comm. 5G5.
The origin of this law (of deodands) is traced back to the oldest periods of European
religious faith, when the belief in the efticacy of. masses for the souls of the dead to rescue
them from the pains of purgatory, was as prevalent and as thoroughly rooted in the mind
of all Christendom, as the disbelief of it is now in this country. It was in tiiose days a
general practice, naturally flowing from this belief, among tlie classes of society whose
means would permit, for fliasses to be said for the souls of the dead, particularly of
those who died on the field of battle, or otherwise came to sudden death, and were sup-
posed, therefore, to pass from this world witiiout due preparation, and without absolution;
and to this practice is traced tlie law of dcodand. Anciently, it seems, when any person
came suddenly by his death by the accidental agency of any animate or inanimate chat-
tel, the chattel was to be given to the cliurch for masses for the soul of the deceased.
Such a law was manifestly a wise and humane one, while it was the fervent belief
of the people that saying of such masses was essential to the eternal welfare of the
souls of deceased persons; for in all times, persons of the poorer sort are those who are
most exposed to death by accidents, and this would be particularly the case in the times
of wiiich we speak, when the higher classes of society took care, by their continual state
of warfare and mutual destruction, to allow little room for accidental death among them-
selves, so that but for the law which devoted to the procurement of masses the thing that
caused accidental death, there could have been for the poor no provision for that species of
spiritual aid, which was considered, both by rich and poor, as much an essential as decent
burial is at this day. In process of time, however, the law appears to have been perverted
from its original intention; and, while the ulterior object for which the forfeiture was
inflicted, appears to have been gradually lost sight of, the forfeiture itself was retained,
but in favour of the crown; and the fruits of it became and have continued, even down
to this day, a mere source of revenue to the crown.
The notion upon which dendands have been principally levied in our own times, and
which appears indeed, to have been always considered as, partly, the reason of the law,
has been that they operate as a sort of penalty on carelessness, tending to make the
owners of chattels of a dangerous character, more cautious in using them. Tiiis is simply
an attempt to fasten some extraneous attribute of utility, upon a process in itself almost
■wholly denied of fitness and utility. As a law lending to enforce caution, it is manifest-
ly one sided; for the forfeiture of the thing which is the cause of a man's death can, of
course, operate only as an inducement to caution, (if indeed it does operate at all) upon
the owner of the thing, whose caution or incaution has, in general, very little to do with
the matter; while upon the persons who expose themselves to the injurious action of the
thing, it can have no effect; yet it is the incaution of the latter class much more than of
the former, that is the cause of accidental death. 9 Lond. Jur. 49, 50. P. II. See also
1 Blac. Comm. note (22) p. 302. 2lst Ed.
In the Parliamentary Session of 1845, Lord Campbell introduced a " Bill to abolish
Deodand<," and Lord Lyttlelon introduced anotlier entitled " An Act for Compensating the
Families of Persoris killed by Accidents;"(*) neither of which however were passed; and
the Law of Deodands in England still rests upon its ancient principles and foundations.(t)
(*) This Bill has now (/4;)riZ 1847) become a law, 9 4- 10 Vict. c.93.2m August, 18i6.
The provisions of the law are as follow:
§ 1. An action to be maintainable against any person causing death through neglect,
&c. notwithstanding the death of the person injured.
(} 2. Acti<m to be for the benefit of certain relations, and shall be brought by and ia
the name of executor or administrator of the deceased.
§ 3. Only one action shall lie, and to be commenced within twelve calendar months,
§ 4. Plaintiff to deliver a full particular of the person for whom such damages shall i>e
claimed.
§ 5. The mode of construing the words and expressions in the act.
§ 6. The act to take efl'eot immediately after passing, and not to apply to Scotlan/i.
^ 7. The act may he amended or repealed the present session of Parliament. See the
Slat, at large in 10 /i«;if/. J(/r. 370. /^<. 2.
(+) When this note was written {July 134fi) such was the law of England, but now,
(April 1847) the learning of the law of deodands has yielded to the spirit of legal reform,
i'lie lirilish Parliament passed "An Act to abolish l)(M)dands," the 18th August, 1846.
Whereas the law respecting the forfeiture of chattels which have moved to or caused the
death of man, and respecting deodands, is unreasonable and inconvenient: be it euacied,
HISTORIA PLACITORUM CORONA. 404
It was never introduced into this conntry, except in a very infornaal manner, and no such
title as Deodand is to be found in the United States Digests.
The introduction of Lord Campbell's Bill, together with some recent cases has caused
the learning of this branch of the law to be much investigated. However important such
investigations may liave been in England, they are liere rather matters of curious anti-
quarian law, tlian of any daily practical utility. An edition o{ Hale^s Pleas uf the Crown
would nevertheless be incomplete without a discussion of the subject, and hence, this note
has been prepared.
"Tiie principles upon which they (the doctrines of deodands) were established," ob-
serves the present Lord Chief Justice of the Queen's Bench, in delivering a recent and
important judgment, {Reg. v. Polwart, 1 Q. B. 824.) -'are so entirely matter of conjec-
ture that we do not feel called upon or justified at the present day to extend their appli-
cation, but rather to limit them strictly to the cases in which we' find them established
by practice and recognised by law." ^ . ' '
It will be convenient to notice here the distinction which exists between the forfeiture
of a weapon or other instrument with which a felony has been ccmmilted, and the value
of which is for the purpose of such forfeiture always found by the jury, and that parti-
cular species of forfeiture which is designated as a deodand. To these two kinds of for-
feiture the name of deodand is by some authors, and amongst others by Sir William
Blackstone {vol. \. p. 302.) indifferently applied, but according to the weight of authority,
it is strictly applicable in those cases only where death has been caused accidentally, and
without the intervention of human means. Poster's Crown L. 266. Indeed it is quite
clear from the older cases, and has recently been expressly decided by the Court of
Queen's Bench that the coroner's jury has no power to lay a deodand if the verdict
returned be one of murder or manslaughter. In Reg. v. Polwart, 1 Q. B. 818. to which
we here allude, the coroner's jury returned a verdict of manslaughter against one Joseph
Polwart, for occasioning the death of one Robert Mason, by his improper and negligent
navigation of a steamboat; and the inquisition further found that "the said steamboat
was moving to the death of the said Robert Mason, and is of the value of X800, and the
property of and in the possession of J. W. D. The late Sir William- Follett in support
of the rule for quashing the inquisition, contended that, a deodand could not be given
in a case of felony, and that consequently so much of the inquisition as related to the
deodand ought to be quashed, as was done in Ex Parte Carrutkers, 2 Man. ^ Ry. 397.
A deodand, observed the learned counsel, is only where death happens by misadventure.
The instrument of death may indeed be forfeited to the king in cases of felony, but that
is not an instance of deodand properly speaking; and he cited Slaund. Pleas del Cor. Lib. I.
e. -U.fol. 20. a. 3 Inst. c. 9. p 57. Foxley's case, 3 Rep. 109, 110. Fost. Cr. Law, 265.
Rex V. Rope, 2 Barnardislon, R. 82. 111. Com. Dig. Waife, E. 1. which certainly fully
support this view of the question. Judgment was accordingly given that so much of the
inquisition, as related to the deodand therein mentioned should be quashed. "All the
authorities in our law books, said the lord Ch. Justice, treat deodands as being due
where the death is by misadventure; and no one instance has been adduced or can be
found, where a deodand has been laid, where a verdict of murder or manslaughter has
been found." The same learned judge, amongst other authorities referred to the following
passage from lord Coke, (3 Inst. c. 9. p. 57.) cittd by Sir William in his argument p. 820,
which is apposite for our present purpose; "deodands" he describes as being laid when
" any moveable thing inanimate, or beast animate, do move to or cause the untimely
death of any reasonable creature by mischance in any county of the realm, (and not
upon the sea or upon any salt water,) without the will, offence or fault of himself or of
any person." The rule of law as finally established in this case in 1 Q. B. 818, will be
found very material in guiding us to a correct conclusion as to the utility of the power
at present possessed by a coroner's jury of imposing deodands. This power, it will be
observed, ceases to exist whenever the degree of negligence which has occasioned death
comes within the definition of legal guilt; and in order to place this matter in the clcar-
&c. that from and after the first of September, 1846, there shall be no forfeiture of any
chattel tor or in respect of the same having moved to or caused the death of man; and no
coroner's jury sworn to inquire, upon the sight of any dead body, how the decased came
by his death, shall find any forfeiture of any chattel which may have moved to or caused
the death of the deceased, or any deodand whatsoever, and it shall not be necessary in
apy indictment or inquisition for homicide, to allege the value of the instrument which
caused the death of the deceased, or to allege that the same was of no value, 10 Lond,
Jur. p.
424 HISTORIA PLACITORUM CORONA.
est point of view, we shall divide cases of violent death into three classes : 1st. where the
death is purely accidental, in which case only a nominal deodand or none at all oug-ht of
course to be imposed; 2d. where death has resulted from negligence and misconduct,
not amounting in contemplation of law to manslaughter, in which class of cases the
power of awarding deodands may undoubtedly be used for the purpose of punishing the
guilty party; and 3d. where death has resulted from manslaughter where, as we have
just seen, no deodand can be laid. 5 Land. Law. Mag. 191-193. The same learned writer
in the 5lh vol. of the Land. Law. Mag. investigates the origin and history of deodands;
(see p. 194-198.) and gives abstracts of both lord CampheWs and lord Lyttleton's Bills,
(seep. 199-203.) See Hansard's Pari. Deb. vol. 18. p. 947. Id. vol. 19. p. 1053, for dis-
cussions upon the respective bills before referred to.
A few modern cases in which the law of deodands is investigated have been adjudica-
ted and are here cited. Reg. v. Brownlow, 11 Ad. Sf El. R. 119. Reg. v. Tlie Grand
Junction Railway, Id. 123, and note, (a) Reg. v. Polwart, 1 Q. B. 818. Reg. v. The
Great Western Railway Company, 3 Id. 341. Ex parte Caruthers, 2 Man. Sf Ry. Rep.
397. Attorney GenHv. J'he Easttrn Counties Railway Company, 3 Railw, Cas. 145.
CHAPTER XXXIII.
OF HOMICIDE, AND IT's SEVERAL KINDS, AND FIRST OP THOSE CON-
SIDERATIONS THAT ARE APPLICABLE, AS WELL TO MURDER AS
MANSLAUGHTER.
Having dispatched the business of suicidiiim or self-murder, and
per infortunium simplex, I come now to consider of homicide, as
it relates to others.
And this is of three kinds: Purely voluntary, r/r. murder and
manslaughter. Purely involuntary, as that other kind of homicide
per infortuni\im. 3. Mixt, partly voluntary, and partly involuntary,
or in a kind necessary, and this again of two kinds, viz. inducing a
forfeiture, as se defendendo, or not inducing a forfeiture, as, 1. In
defense of a man's house. 2. Defense of his person against
[ 425 ~\ an assault in vid regid. 3. In advancement or execution of
justice, and according to this distribution I shall proceed.
I shall begin with those matters considerable, which are applicable
as well to homicide, as to murder.
Murd>;r is a killing of a man ex malitid prsecogitatd;{2'] homicide
is killing a man without forethought malice.[l]
[1] It will be perceived that the word homicide is here used not in the present general
sense of killing, but as the term manslaughter is now used.
[2] Coke's definition of murder, (3 Inst. 41,) as modified by Blarkstone, is so accurate,
comprehensive and elegant that it has been universally recognized wherever English
law prevails. " Murder (says Blarkstone, 4 Comm. 198) is when a person of sound
memory and discretion unlawfully killcth any reasonable creature in being and under
the king's peace, with malice aforethought, cither express or implied."
This is substantially the dcHiiilion of this crime as known for several hundred years in
England, and as now understood in the United States. Wilkins's Laws of the Anglo-
Saxnns, 480; Glari. L. 1 4, c. 3 ; Home's il/n ror, 4G; Dait. c. 145 ; St. 52, //. 3, 25 ; Bracton,
L. 3, c. 4, s. 1; Britt. c. (J, s. I ; Fletn, L. 1, c. 30; Kelham's Norman Diet. "Murder;"
CoweWs Diet. "Murder;" BlounCs Law Dirt. "Murder;" Stauud. b. 1, c. 10; 1 Hoick.
c. 31, s. 3; Vin. Abr. "Murder," a. 1; 2 McNally, 553; Foster, 25ti; 1 East, P. C. 215;
HISTORIA PLACITORUM CORONA. 425
It is a mistake in those, that think, that before the statute of Mar-
lebridgc, cap. 2G, all killing of a man, tho per infortunium or se de-
fendendo, was murder, for the statute saith, that murdrum de csetero
non adjudicetur coram justiciariis, ubi infortunium tantummodo ad-
judicatur, sed locum habet murdrum de interfectis per feloniam tan-
turn, & non aliter, and therefore they thought that before this statute
a man should be hanged for killing another in his own defense..
21 E. 3. 17. b.{a)
But the truth is, murdrum in this case was but an amercement,
that was antiently imposed upon a township, where the death of a
man happened ;(Z») and this appears by many hundred old charters
of the kings of England., especially to bishops and monasteries,
whereby it was granted, that they and their possessions should be
quit de murdro Sf latrocinio among divers other immunities, where-
by we must not think that they had power granted them to commit
murder or theft, but they were thereby acquitted of those common
amercements, usually in those antient times imposed in eyre upon
vills for murder and theft committed there.
To make up the crime of homicide or murder there must be these
three concurring circumstances.
I. The party must be killed, antiently indeed a barbarous assault
with an intent to murder, so that the party was left for dead, but yet
recovered again, was adjudged murder and petit treason,
15 E. 2. Coron. 3S3. but that holds not now, for the stroke [ 426 ]
without the death of the party stricken, nor the death with-
out the stroke or other violence makes not the homicide or murder,
for the death consummates the crime.
It remains therefore to be considered, to what intents the offense
of murder or manslaughter relates to the stroke or other cause of the
death, and to what purposes it relates to the death only.
(a) See also 2 Co. Instit.p. 148, who is of tliat opinion.
(b) This is so plain, that it is matter of surprize, that any should mistake it; the
word murdrum usually signifying a secret killing of another, so that the murderer was
not known, for if the murderer was known, it was not in this sense murder; as if the
murderer was taken, Sf judicium sustinuerit, nullum erit murdrum, quia convincitur
felunia, or if the murdered person lived for some time after his wounds, it was no murder
because he might discover the murderers, the meaning of which is not, that the offender
would not in those cases be liable to be indicted and punished for murder, but that the
vill or township would not in such cases be liable to any amerciament. Bract. Lib. HI.
de corona, cap. 15. p. 135. a. Wilk. Le^. Anglo-Sax. p. 280. vide supra p. 39. in notis, vide
fostea cap. 35. See also Kelynge, 121.
Bac. Abr. " Murder," A.; Jacob's Law Diet., " Murder;" 2 Ld. Rnym. 1487; Kehjnge^
1-21-127; 3 Chithj, 123; 3 Slarkie, 513; 1 Russell, 421 ; ^rchbold, 818; 2 Deacon, 896;
Roscoe, 5G2 ; Davis, Cr, L '92 ; C. J. Parsons's def. {Selfridge's Tr. 3,) Brockenbo.
rough, J. in 6 Randolph's Va. R. 723; 6 Mass. R. J39 ; 7 Dnn'e, Abr. c. 212; State v.
Ze'ler, 2 Halsted's R. N. Jersey, 242 ; Comm. v. Drew, 4 Mass. 391; The People v.
Enoch, 13 Wend. 159; Respublica v. Mulatto Bob. 4 Dallas, 149; Commonwealth v. Har.
man, 4 Barr. ; Commonwealth v. Mosler, 4 Barr. ; U. S. v. McGill, 1 Wash. C. C. R. 463.
Some of the authorities above quoted are from "A Report of tlie Penal Code of
Massachusetts, prepared under a resolulion of the Legislature," Boston, 1844. To the
authors of this very able and comprehensive work, Messrs. James C. Alvord, Luther .S
Cus«iN<5,WiLLARD PiiiLLirs, and Samuel B. Walcott, the editors, are largely indebted
for the notes to this and some of the immediately succeeding chapters.
426 HISTORIA PLACITORUM CORONA.
If a man gives another a mortal stroke, and he lives a month,
two or three, or more, and die within the year and day, the title
of the lord by eschete to avoid mesne incumbrances relates to the
stroke given, and not only to the death. Plowd. Com. 263. Dame
Hale's case. [3]
If a man give another a mortal stroke, and he dies thereof within
a year and a day, but mesne between the stroke and the death there
comes a general pardon, whereby all misdemeanors are pardoned,
this doth pardon the felony consequentially, because the act, that is
the offense, is pardoned, tho it be not a felony till the party die.
Ibid. 401. CoWs case.
If a mortal stroke be given on the high sea, and the party comes
to land in England and die, the admiral shall not have jurisdiction
in this case to try the felon, because the death that consummated the
felony, happened upon the land, nor the common law shall not try
him, because the stroke, that made the offense, was not infra corpus
comitatus, 5 Co. Rep. 106. h. Sir Henry Constable's case, 2 Co.
Rep. 93. a. Biyigham^s case, Co. P. C. p. 48. and Lade's case,
25 Eliz. cited there to that purpose; de quo alibi; see 9. Geo. IV.
c. 31, s. 7, Ǥ'C.
At common law, if a man had been stricken in one county and
died in another, it was doubtful whether he were indictable or tri-
able in either, but the more common opinion was, that he might be
indicted where the stroke was given, for the death is but a con-
sequent, and might be found tho in another county, 9 E. 4. 48.
7 H. 7. 8. and if the party died in another county, the body was
removed into the county, where the stroke was given, for the coro-
ner to take an inquest super visum corporis, 6 H. 7. 10. but now
by the statute of 2 <§' 3 E. 6. cap. 24. the justices or coroner
[] 427 3 of the county, where the party died, shall inquire and pro-
ceed, as if the stroke had been in the same county, where
the party died.
On the other side, as to some respects, the law regards the death
as the consummation of the crime, and not merely the stroke.
If a party be kild in one county, the coroner super visum corporis
might at common law inquire of all accessaries or procurers before
the fact, tho the procurement were in another county, 20 H. 7. Kelw.
67. b. per omnes justiciarios Anglise; but now by the statute of 2 (§•
3 E. 6, cap. 24. the indictment and trial of the accessaries shall be in
the county, where they were accessary, viz. procuring, abetting or
receiving.
If a party be mortally wounded, and the offender taken and in the
custody of the constable, and he suffers him to escape before the
[3] The death must ensue within a year and a day after tho stroke received or cause of
deatli adtiiinistcred, in the compulation of wliich tlie whole day upon which the hurt was
done shall he reckoned the first. .3 Initt. l.'iS; 1 Ihiwk. c. 31, s. 9; 1 East. P. C. 343-
344; 1 Russell, 428; 4 lil. Com. 1!)7; 3 Chdly, 72G. Sec Nicholos' case, Foster, 64,
where it is doubled whether Cule\<s case warrants the rule in the latitude here luid
down.
HISTORIA PLACITORUM CORONiE, 427
wb.unded person die, it is not felony in the constable, tho he die after
within the year. 11 H. A. 12. Ploiv. Com. 401. Coie\ ca.se.
If a stroke be given the Is't of January/, and the party die the 1st
of March following, the year and day to bring an appeal is to be
accounted from the death, and not from the stroke, contrary to the
opinion of Slamford P. C. 63. a. quod vide Co. P. C. p. 53. Sr sur
statute de Glouc. cap. 9.,{c) 4 Co. Rep. 42. b. Haydorfs case, SatUt.
3 //. 7. cap. 1.
If t-'?. give a mortal stroke the 1st of January, and the party lives
till the 1st o{ February, and then dies of the stroke, the conclusion of
the indictment is best, Et sic prsefatus A. <§'C. modo <§• forma prm-
dictd interfecit Sf murdravit, because it applies to the whole case.
2. But if it be, Et sic praefafits A. prxdicto 1 Januarii ipsum, S^^c.
interfecit ^' murdravit, it is naught, because it is no murder till the
party dies, 4 Co. Rep. 42, Haydoti's case, vide ibidem Katharine
HuDie's case. 3. But if it conclude, Et sic prxfatus A. ipsiim, <5'C.
prsedicto 1 Februarii interfecit 4* murdravit, it is good, because
then the murder is complete, 4 Co. Rep. 47. a. Wigge's case, tho in
such a case of a stroke at one day or one place, and a death
at another day or place, the best conclusion, and that which [428 ]
is in common use at this day is, Et sic pra3dictus Ji. ipsum,
&c. modo & forma praedictis interfecit & murdravit.
And thus far touching the relation to the stroke or death.
Now what shall be said a killing and death within the year and
day.
If a man give another a stroke, which it may be, is not in itself so
mortal, but that with good care he might be cured, yet if he die of
this wound within the year and day, it is homicide or murder, as the
case is, and so it hath been always ruled, 3 Inst. 47,
But if the wound or hurt be not mortal, but with ill applications
by the party, or those about him, of unwholesome salves or medi-
cines tlie party dies, if it can clearly appear, that this medicine, and
not the wound, was the cause of his death, it seems it is not homicide,
but then that must appear clearly and certainly to be so.
But if a man receives a wound, which is not in itself mortal, but
either for want of helpful applications, or neglect thereof, it turns to
a gangrene, or a fever, and that gangrene or fever be the immediate
cause of his death, yet, this is murder or manslaughter in him that
gave the stroke or wound, for that wound, tho it were not the imme-
diate cause of his death, yet, if it were the mediate cause thereof, and
the fever or gangrene was the immediate cause of his death, yet the
wound was the cause of the gangrene or fever, and so consequently
is causa causoti.
If a man be sick of some such disease, which possibly by course of
nature would end his life in half a year, and another gives him a
wound (Jr hurt, which hastens his end by irritating and provoking the
disease to operate more violently or speedily, this hastening of his death
(c) 2 Co. Instit. 320.
VOL. I.— 37
428 HISTORIA PLACITORUM CORON^E.
sooner than it would have been is homicide or murder, as tlie case
liappens, in him, that gives the wound or hurt, for he doth not die
simply ex visitatione Dei, but the hurt that he receives hastens it, and
an offender of such a nature shall not apportion his own wrong, and
thus I have often heard that learned and wise judge Justice Rolle fre-
quently direct. [4]
If a man either by working upon the fancy of another, or
[[429 3 possibly by harsh or unkind usage puts another into such
passion of grief or fear, that the party either dies suddenly,
or contracts some disease, whereof he dies, tho, as the circumstances
of the case may be, this may be murder or manslaughter in the sight
of God, yet inforo hximano it cannot come under the judgment of
felony, because no external act of violence was offered, whereof the
common law can take notice, and secret things belong to God; and
hence it was, that before the statute of 1 Jac. cap. 12. witchcraft or
fascination was not felony, because it wanted a trial, tho some con-
stitutions of the civil law make it penal. [5]
If a physician gives a person a potion without any intent of doing
him any bodily hurt, but with an intent to cure or prevent a disease,
and contrary to tlie expectation of the physician it kills him, this is •
no homicide, and the like of a chirurgeon, 3 E. 3. Coron. 163. And
[4] Martin's case, 5 C. Sf P. 128. 1 Russell, 429. Archbold, 319. Roscoe, 544-6.
575, 576. Johnson''s case h'fore Halleck, B. Nisi Priiis, York Assizes, 1827. {Lewin's
Crown Cases, 164.) seems to conflict with tlie text. The prisoner was indicted for kill-
ing the deceased while in a state of intoxication by a blow, which the physician testified
might not have produced death if the party had been sober. Halleck, B. directed aa
acquittal, observing that " where the death was occasioned partly by a blow and partly
by a predisposing cause, it was impossible to apportion the operation of the several
causes, so as to be able to say with certainty that the deatii was immediately occasioned
by any one of them in particular." It seems that the doctrine thus laid down and ap-
plied to the case then on trial, cannot be the law. It is entirely at variance with the
principle established by previous authorities, and stated in the text; for it would be as
applicable to any other predisposing cause, the infirmity of age and sickness, for instance,
as that of intoxication. Roscoe questions the correctness of the decision. See also,
IHawk.c. 31. s. 10. 1 East, P. C. 3i4. 3 Chitty,126. I Russell, 428. Archbold, 319,
Commonwealth v. Green, 1 Ashmead, 289.
[5] The distinction between destroying life by mechanical means or bodily injury, and
by operating upon the fears or passions, appears not to be derived from any difference in the
criminal nature of the acts, for the latter in many cases may show tlie deeper design and
darker malignity, but from the difficulty in the latter, of the proof connecting the act
with the result, and the dangerous latitude of the opposite principle. 1 East, P. C. 225.
3 Chitly, 726. 1 Russell, 425. 2 Starkie's Ev. 514. Roscoe, 570. 2 P. Sf F. Med. Juris.
110, n (a ) Report on the Penal Code of Massachusetts. 4 Bl. Com. 197. Chitti/s nute '
and cases there cited.
If, however, a jierson being attacked should from an apprehension of immediate vio-
lence, an ajiprehension which must be well grounded and justified by the circumstance?,
throw himself for escape into the river, and be drowned, the person attacking Jiiin is
guilty of murder. Rejr v. Pitts, 1 Car. Sf Mars. 284.
Or if words or signs are used to induce an act resulting in death, it is a killing by the
person inducing the act; as if a blind man be directed to a precipice, or a deadly drOg
be recommended, and death ensue in consequence, it is a killing. Davis'' Cr. L. 94. Lit).
P. C. 437. Evans' case, O. B Sep. 1812. M. S. Baylei/, .}. in 1 Russell, 425. Freeman's
Case, 4 Mnsim, 505. So also if one counsels or assists another to commit suicide. Vaults
Case, 4 Rep. 44 h. 1 Russell, 424-29. 4 Bl. Com. 188. 3 Chitly, 726. Dyson's Case, R. Sf
R. 523. Bowcns' Case, 13 Mass. 356. Mass. Com. Rep. p. 12.
HISTORIA PLACITORUM CORONA. 429
I hold their opinion to he erroneous, that think, if he be no licensed
chirurgeon or physician, that occasioneth this mischance, that then it
is felony, for physic and salves were before licensed physicians and
chirurgeons; and therefore if they be not licensed according to the
statute of 3 H. S. cap. 1 1. or 14 //. 8. cap. 5. they are subject to the pe-
nalties in the statutes, but God forbid that any mischance of this kind
should make any person not licensed guilty of nmrder or manslaughter.
These opinions therefore may serve to caution ignorant people not
to be too busy in this kind with tampering with physic, but are no
safe rule for a judge or jury to go by : we see the statute of 34 <§• 35
H. 8. cap. 8. dispenseth with the penalty of those former statutes, as
to outward applications and medicines for agues, stone, orc^strangury,
which may be administered by any person, and the preamble of the
statute tells us, that if none but licensed chirurgeons should be used
in many cases, many of the king's subjects were like to perish for
want of help. [6]
[6] Later authorities agree with Hale in these points. If a person, whether he be a
regular practitioner or not, honestly and bona fide perform an operation which causes
the patient's death, lie is not guilty of manslaughter. Rex v. Van Butchell, 3 C. Sf P. G29.
But if he be guilty of criminal misconduct, arising from gross ignorance or criminal in-
attention, then he will be guilty of manslaughter. Rex v. Williamson, 3 C. A- P. 635.
Rex V. Spiller, 5 V. Sf P. 333.
When the defendant, not a regular physician, killed a woman by an application, and
the jury found he entertained a criminal disregard of human life, he was convicted of
and punished for manslaughter. Rex v. Long, 4. C, Sf P. 423. Rex v. Senior, R. ^- M.
C. C. 346. In Rex v. Webb, 1 M. S( Rob.4H). Lord Lyndhurst laid down the following
rule; — " In these cases there is no difference between a licensed physician or surgeoa
and a person acting as physician or surgeon, without license. In either case, if a party
having a competent degree of skill and knowledge makes an accidental mistake in his
treatment of a patient, through which mistake death ensues, he is not thereby guilty of
manslaughter; but if, where proper medical assistance can be had, a person totally igno-
rant of the science of medicine, takes on himself to administer a violent and dangerous
remedy to one labouring under disease, and death ensues in consequence of that danger-
ous remedy having been so administered, then he is guilty of manslaughter. If I enter-
tained the least doubt of this position, I might fortify it by referring to the opinion of
Lord Ellenborough in R. v. Williuwson, 1 shall leave it to tiie jury to say — first, whether
death was occasioned or accelerated by the medicines administered; and if they think it
was, then I shall tell them, secondly, that the prisoner is guilty of manslaughter, if they
think that in so administering the medicine he acted with a criminal intention or from
very gross negligence." In the case of R. v, Nancy Simpson, (reported in Willcock on the
Law relating to the Medical Profession, Append. 2"27,) the prisoner was indicted for
manslaughter. It appeared that the deceased, a sailor, had been discharged from the
Liverpool Infirmary as cured alter undergoing salivation, and that he was recommended
by another patient to go to the prisoner for an emetic, to get the mercury out of his
bones. The prisoner was an old woman, who resided at Liverpool, and occasionally dealt
in medicines; she gave him a solution of while vitriol, or corrosive sublimate, one dose
of which caused his death; and she said she had received the mixture from a person who
came from Ireland, and had gone back again. And in that case Mr. Justice Bayley said,
"I take it to be quite clear tliat if a person, not of medical education, in case wiicre pro-
fessional aid might be obtained, undertakes to administer medicine which may have a
dangerous effect, and thereby occasions death, such person is guilty of manslaughter.
He may have no evil intention, and may have a good one, but he has no right to hazard
the consequences in a case where assistance may be obtained. If he does so, it is at his
peril. It is immaterial whether Uie person administering the medicine prepares it or
gets it from another." The prisoner was convicted. If a chemist's apprentice be guilty
of negligence in delivering medicine, and death ensue in consequence, he is guilty of
429 HISTORIA PLACITORUM CORONiE.
But if a woman be with child, and any giv^s her a potion to de-
stroy the child within her, and she takes it, and it works so strongly,
that it kills her, this is murder, for it was not given to cure
r 4301 her of a disease, but unlawfully to destroy her child within
her, and therefore he that gives a potion to this end, must
take the hazard, and if it kill the mother, it is murder, and so ruled
before me at the assizes at Bury in the year 1670. [7]
■ And certainly if that opinion should obtain, that if one not li-
censed a physician should be guilty of felony, if his patient miscarry,
we should have many of the poorer sort of people, especially remote
from London, die for want of help, lest their intended helpers might
miscarry. •
This doctrine, therefore, that if any die under the hand of an un-
licensed physician, it is felony, is apocryphal, and fitted, I fear, to
gratify and flatter doctors and licentiates in physic, tho it may, as I
said, have its use to make people cautious and wary, how they take
upon them too much in this dangerous employment.
If a man have a beast, as a bull, cow, horse or dog, used to hurt
people, if the owner know not his quality, he is not punishable, but
if the owner be acquainted with his quality, and keep him not up
from doing hurt, and the beast kill a man, by the n.r\i\en\. Jewish
law(*) the owner was to die for it, Exod. xxi. 29. and with this
seenis to agree the book of 3 E. 3. Coron, 311. Slam/. P. C. 17. a.
wherein these things seem to be agreeable to law.
1. If the owner have notice of the quality of his bea^t, and it doth
any body hurt, he is chargeable with an action for it.
"2. Tho he have no particular notice, that he did any such thing
before, yet if it be a beast, that is /eras naturss, as a lion, a bear, a
wolf, yea an ape or monkey, if he get loose and do harm to any per-
son, the owner is liable to an action for the damage, and so I knew
it adjudged in Andrew Baker^s case, whose child was bit by a mon-
key, that broke his chain and got loose. See May v. Burdette,
10 Lond. Jiir. '
3. And therefore in case of such a wild beast, or in case of a bull
or cow, that doth damage, where the owner knows of it, he must at
(*) Vide supra, p. 3. in notis.
manslaugfhler. {Tessymond^ s Caso, 1 Lew. 169.) SeeRegina v. Spilling, 2 M, S( Rob. 107.
Rex V. Simpson, 1 Lrwin. C. C. 172. Rex v. Ferguson, 1 Lewin. C. C. 181. Coin.y.
Chauncey, 2 Ashniead, 227.
In Massachusetts, it' one assuming to be a physician, however ignorant of the medical
art, administers to his j)aticnt remedies which result in liis deatli, he is not guilty of man-
slaughter, unless he has so much knowledge or probable information of the fatal tendency
of his prescriptions, as to raise a presumption of obstinate, wilful rashness. Com'm, v.
Thompson, 6 Mass. 134. When however, such person has opportunity to know of the
injurious cfiecls of his remedies, and then administers them, it would be competent for
the jury to find him guilty of manslaugiitcr, even though he might not have intended any
bodily harm to his patient. Viid.
[7] If a woman take poison with intent to procure a miscarriage and dies of if, she is
guilty of self-murder, whether she was (juick with child or not: and a person who fur-
nished her with the poison lor that purpose, will if absent, be an accessary before the
fact. Rex v. Russell, 1 M. C. C. R. 356.
HISTORIA PLACITORUM CORONA. 430
his peril keep him up safe from doing hurt, for tho he use his dili-
geuce to keep him up, if he escape and do harm, the owner is Uable
to answer damages.
4. But as to the point of felony, if the owner have notice
of the quaUty of the ox, 4'C. and use all due diligence to [ 431 ]
keep him up, yet the ox breaks loose and kills a man, this
is no felony in the owner, but the ox is a deodand. •
5. But if he did not use that due diligence, but thro negligence the
beast goes abroad after warning or notice of his condition, and kills
a man. I think it is manslaughter in the owner.
6. But if he did purposely let him loose, or wander abroad with
design to do mischief, nay tho it were with design only to fright
people and make sport, and it kill a man, it is murder in the owner,
and I have heard, that long since at the assizes held at SL ^^Ibans
for Hertfordshire it was so ruled, and the owner hanged for it, but
this is but an hearsay. [8]
If a man lay poison to kill rats, and a man casually take it, where-
by he is poisoned, this is no felony, but if a man lay poison to the
intent that B. should take it, to be poisoned therewith, and C. by
mistake take it, and is poisoned to death, this is murder, tho it
were not intended for him. Bait. cap. 93.{d) 9 Co. Rep. 81. b.
Jlgnes Gore's case, Plowd. Com. 474. Sander's case.
And altho the party take the poison himself by the persuasion of
another in the absence of the persuader, yet it is a killing by the per-
suader, aiKi he is principal in it, tho absent at the taking of it. 4 Co.
Rep. 44. h. Vaiix's case.
if vi. gives poison to B. intending to poison him, and B. ignorant
of it, gives it to C. a child, or other near relation of ^1. against
whom he never meant harm, and C. takes it and dies, this is murder
in A. and a poisonmg by him, Plowd. Com. 474. a. Bait, cap 93.
but B. because ignorant, is not guilty.
\i A. gives purging comfits to B. to make sport, and not to hurt
him, and B. dies thereof, it is a killing by A. but not murder, but
manslaughter. Bait. cap. 93. [9]
There are several ways of killing, 1. By exposing a sick or weak
person or infant unto the cold to the intent to destroy him, 2 E. 3.
18. b. whereof he dieth. 2. By laying an impotent person abroad,
so that he rAay be exposed to and receive mortal harm, as
laying an infant in an orchard, and covering it with leaves, [ 432 3
whereby a kite strikes it, and kills it. 6 Eliz. Crompt. de Pace
(d) New Edit. 1727. cap. U5. p. 471.
[8] 4 Bl. Com. 197. 3 C. S^ P. 320. Palm. 554. 1 Russell, 622. Roscoe 571.
[9] If ^. give a poisoned apple to B. intending to poison her, and B. ignorantly give
it to a child who eats it and dies, this is murder in A. but no otrence in B. and this
though A. being present at the time endeavoured to dissuade B. from giving it to the child.
2 Plowden Com. 473, edition Dublin, 1792, and authorities there collected. S. P. Crompt.
Jus. 23. pi. 24. Lamb Just. lib. 2. cap. l.fol. 242. Dalt. JuM. cap. 145. s. 8. 3 Inst. 51.
1 H'lwk. P. C. 79. 2 Hawk. P. C, 316. Lane, 47. Jenk. 290. 1 Finch, 63. 3 Bacon's
Abr. 663. 670. The notes to the case in 2d Plowden, at great length, refer to all the
ancient law.
432 HISTORIA PLACITORUM CORONA.
24. DaJf. cap. 93.{e) 3. By imprisoning a man so strictly that he
dies, and therefore where any dies in gaol, the coroner onght ta be
sent for to inquire the manner of his death. 4. By starving or fa-
mine. 5. By wounding or blows. 6. By poisoning. 7. By laying
noisome and poisonous filth at a man's door, to the intent by a poi-
sonous air to poison him, Mr. Ballon, cap. 93. out of Mr. Cook's
rdlUding. 8. By strangling or suffocation. [10]
(e) iVew 'Edit. cap. 145. p. 469.
. [10] Killing is causing the extinction of life by means of some bodily injury. Living-.
ston''s Penal Code, 4. 2 Starkie Ev. 51'S. It may be effected by violence immediately
directed against the person, or constructive and consequent on the act of the accused.
1. By striking. Thompson'' s case. Moody, 139. Kelley^s case, ibid. 113. Whitens case,
6 Binnei/, 181. Moslcr^s case, 4 Barr.
2. By stabbing. T/iiirston''s case, 1 Lei\ 91. 1 Keble, 454, 455. Edward's case,
6 C. Sf P. 401. Rex v. Hay ward, 6 C. Sf jP. 157. '■
3. By shooting. Hiip:hes' case, 5 C. S( P. 126. Tawle's case, 3 Price, 145. Self,
ridcre's case, Boston, 1806. Pamphlet. Daily's case, 4th Perm. Law Journal, 150.
4. By drowning. Dyson's case, R. tSf R. 523. Green's case, 2 St. Trials, 214. Har-
grove's edition. Harman's case, 4 Barr.
5. By sutfocation. Rex v. Tye, 1 Russell, 470. R. Sf R. C. C. 435. Rex v. Waters,
1 Car.\^ P.250. Rex \: Caulkin, 5 Car. Sf P. \'2l.
6. By strangling. Tye's case, R. Sf R. 345. Huggins' case, 3 C. Sf P. 414, Caulkin's
case, 5 C. Sf P. 121. Rex v. Shaw, 6 C. Sf P. 372.
7. By crushing. Hale's Sum. MS., 53.
8. By bruising. Hale's Sum. MS., 53.
9. By poisoning. Saunders' case, Plowd. 474. Gove's case, 9 Rep. 81. Anon. Kely.
52. Vaux's case, 4 Rep. 44. a. Reg. v. Sandys, 1 Car. ^- M. 345.
From the secrecy, malice and deliberation attendant on killing by poison, it hasahvajrs
been esteemed homicide of the higlicst nature. Tlie laws of most countries affix to it
peculiar guilt. The statute 22 Hen. VIII. c. 9. made it high treason, and punished it by
boiling to death. Tiie Statute 1 Ed. VI. c. 12. repealed this act. In most of the United
States, killing by poison is declared by statute to be murder of the first degree. See
notes to chap. 36.
10. Giving one excessive quantities of spirits to drink, whereby death is occasioned.
R. V. Packard et al. 1 C. Sf M. 236.
11. By starving. Beale's case, 1 Leon. 327. Squire's case, 1 Russel, 426.
12. By corrupting the air. 2 Paris tSf Fonblanque's Medical Jurisprudence, question
as to whether death can be produced in tiiis way. However tiiis may be as to the exter-
nal atmospliere, it is undoubtedly true that death may be caused by noxious gases under
many circuiiistanccs. To confine a person in a close room filled with the fumes of char-
coal; to compel or induce the respiration of air deprived of the qualities necessary to
support life, or impregnated with noxious qualities, might cause death, and the party
would be criminally responsible. In Paris many such cases have occurred.
13. ]5y communicating infection. See ;?os<, 432.
14. 15y putting one to death at his request, or advising it. Rex v. Sawyer, 1 Russ,
424. Rex V. Dyson, R. Sf R. C. C. 523. Reg. v. Allison, 8 C. Sf P. 418. Comm- v.
Bowen, 13 il/ass. 359.
15. By laying a trap or pitfall. 4 Bl Com, 35. 1 Russell, 617.
16. By letting loose a dangerous animal. Palmer, 545. 4 Bl. Com. 197. 1 Russell,
622. Roscoe, 511. ante, p. 4:i0.
17. (Compelling one to do an act likely to cause, and which docs cause death. 1 Rus.
sell, 425-6. Archbold,3VJ. Ro.'^coe, 511. Rex v. Evans, \ Russ. 426.
18. The lilic, the compulsion being by threats only. Evans Case, O. B. Sep. 1812.
M. S. Buyh-.y, J. 1 Russoll, 425.
19. Death in obedience to the command of one having authority. In Freeman' s case,
4 Mason, 505, tlie prisoner, being the master of a ship, coni|)elled a sailor in a state of
great exhaustion and debility, known to the master, to go aloft, and the seaman foil from
the mast and was drowned. The jirisoncr was convicled of manslaughter.
20. By pretended medical treatment. Com. v. Thompson, 6 Mass, 134. Com. v.
HISTORIA PLACITORUM CORON.E. 432
Moriendi mille Jigurx.
A man infected with the plague, having a plague-sore running
upon him, goes abroad, this is made felony by the statute of 1 Jac.
cap. 31, but is now discontinued ;(/) but what if such person goes
( /") It was made at first to continue no longer, than until the end of the first session
of the next parliament.
Ckauncey, 2 Ashmead, 227. Rex. v. Van Butchell, 3 C. ^ P. 629. Rex. v. Williamson,
3 C. .^ P. 635. Rex v. Spiller, 5 C. ^ P. 333. Rex. v. Long, 4 C. S( P. 423. Rex v.
Senior. R. Sf M. C. C. 346. Rex v. Webb, 4 M. S( Rob. 410. Regina v. Spilling, 2 M.
if Rob. 207. Re^ v. Simpson, 1 Lewin, C. C. 172. Rex v. Ferguson, 1 Lewin, C. C181.
21. By attempt to procure abortion or destroy an unborn child. See anle, note 1, p. 430.
R£x. V. Russell, 1 M. C. C. R. 356.
22. By exposure or neglect of, or cruelty towards one incapable of self-protection. When
a parent, guardian, master or other person, having the custody of a child, apprentice or
servant ot tender years, or of a sick man, insane man or idiot or other person, exposes
him to a situation of manifest danger to life, or is guilty of gross neglect or cruelty to-
wards him, and dciith ensue in consequence, it is a killing by such parent, guardian,
master or person having custody. 3 Inst. 53. 1 Russell, 426. Archbold, 319.
The following cases illustrate this division of tiie modes of killing. When a parent
places a helpless infant in a hog-stye, where it is devoured, 1 East, P. C. 225. or exposes
it on a rock at sea, from which it is washed away, Helen Wilson's case, 1 Hume, 279. or
leaves it in a remote iield, where it is destroyed by wild beasts or trodden upon by cattle,
1 Hawk. c. 31, s. 5. or exposes it where it may perish with cold or famine or want of care,
BeaWs case, 1 Leon. 327. Margaret Smith's case, 1 Hume, 279. or a parent, master or
guardian refuses to furnish a child or apprentice of tender years or infirm health, to
whom he owes support, with sutficient or proper sustenance, or lodging or clothing,
Squire's case, 1 Russell, 426, note. Self's case, 1 Leach, 137. Gould's case, Salkeld, 361.
Ridley's case, 2 Camp. 650. Elizabeth Key's case, 1 Hume, 279. or wiien 'municipal
officers, to avoid a charge, shift a child from town to town, without sufficient food, or
clothing, or other care. Rainier, 545. Holloicay's case, 1 Russell, 425. or one carries his
sick father, against his will, abroad in an inclement season, 1 Haick.c. 31, s. 5. or where
a jailor confines a prisoner in the same cell with an outrageous madman unbound, or
with a person dying with a malignant or contagious disease ; or thrusts him into a
loathsome and pestilential dungeon, knowing tlie danger, and death follows in conse-
quence, it is killing by the jailor; or if one procures an idiot or lunatic to kill another,
it is a killing by the person so procuring the idiot or lunatic to do the homicide. In all
these cases, or others of like nature, if the duty violated be plain and the danger apparent,
and death ensue in consequence of the act or neglect, it is a criminal killing. Mass. Com.
Rep. 9, 10, 11, refers to Britt. c. 11. s. 9. Stamf. 36. 3 Inst. 52. Palmer, 548. 1 Hawk.
c. 31. sec. 10. (note.) Foster, 322. Huggin's case, 2 Ld. Raymond, 1574. 2 Strange, 882.
Castell V. Bambridge, 2 Strange, 856. 1 East, P. C. 226-331. 1 Russell, 459. Bacon's
Abridgment, Murder A. See cases of Huggins, Bambridge, and Atkins, State Trials,
(Hargrove) vol. 17. quarto, 310-452. et seq. (folio) vol. 9. 107. 146. 182. et seq. Regina
V. Walters, 1 Car. Sf M. 164. Regina v. Pitts, 1 Car. Sf M. 284. Rex 7. Squires, 1 Russ.
C. Sf M. 426. Rex v. Cheesman, 1 C. Sf P. 454. Regina v. Marryatt, 8 C. & P. 425.
Rex v.Self, 1 Leach, C. C. 137.
The early writers laid down the law to be, that it was a killing to take away the life
of another by swearing deliberately, falsely in a capital trial. (Mirror, c. l,s. 9; Britt.
c. 5. s. 2; Bract. B. 3, c. 4, and see 1 Hawk. c. 31, s. 10.) But lord Coke says, (3 Inst.
48,) " It is not holden for murder at this day;" and such seems now to be the weight of
authority. The latest case on this point is that of McDaniel and others, reported in
Foster, 132, and 1 Leach, 44. The defendants were convicted, but judgment was re-
spited, in order that the question of law might be fiilly considered. But the attorney
general declined to prosecute the case further, and the prisoners were discharged from
the indictment. The opinion of Sir Michael Foster was against the indictment. Sir
William Blackstone, however, says, (4 Com. 196,) that tiie attorney general did not press
the point on account of prudential reasons, and not from any apprehension that it was
not maintainable; and in 1 East's P. C. 333, it is added, that lord Mansfield had said.
432 HISTORIA PLACITORUM CORONA.
abroad, to the intent to infect another, and another is thereby infect-
ed and dies? whether this be not murder by the common law miglit
be a question, but if no such intention evidently appear, tho de
facto by his conversation another be infected, it is no felony by the
common law, tho it be a great misdemeanor, and the reasons are,
1. Because it is hard to discern, whether the infection arise from
the party, or from the contagion of the air, it is God's arrow, and
2. Nature prompts every man, in what condition soever, to pre-
serve himself, which cannot be well without mutual conversation.
3. Contagious diseases, as plague, pestilential fevers, small pox,
4'C. are common among mankind by the visitation of God, and the
extension of capital punishments in cases of this nature would multi-
ply severe punishments too far, and give too great latitude and loose
to severe pnnishments.[ll]
II. the second consideration, that is common both to murder and
manslaughter, is, who shall be said a person, the killing of whom
shall be said murder or manslaughter.
If a woman be quick or great with child, if she take,
r 433 3 or another give her any potion to make an abortion, or if
a man strike her, whereby the child within her is killed, it
is not murder nor manslaughter by the law of England, because it
is not yet iri reruin natura, tho it be a great crime, and by the judi-
cial law of Moses{g) was punishable with death, nor can it legally be
made known, whether it were killed or not, 22 E. 3. Coron. 263. so
it is, if after such child were born alive, and baptized, and after die
of the stroke given to the mother, this is not homicide. 1 E. 3. 23. b.
Coron. 146. [12]
(g) Exod.xx'u 22.
that the opinions of several judges, including himself, were strongly in favour of the in-
dictment. Most of the more recent writers, however, seem to incline to the opinion that
a person cannot be indicted for murder in procuring another to be executed by falsely
charging him with a crime of whicli he was innocent. 1 East, P. C. 333. See 4 Bl. Com.
196-7. Chilb/snote. I Russell, 421. 3 ChiUy,126. Archbuld, 319. Roscoe, 513. 10 Am.
Jurist, 261. The Gothic laws punished this offence with death, (4 Bl. Cum. 196, quotes
Stcirnh, de jure Goth. L. 3, c. 3. See also D. 48, 8, 1 ; and Folhier''s Pandects, 48, 8,
No. .3, by which it would seem that, in tlie Roman law, tlie judge also, if he were
bribed, and, under the influence of the bribe, improperly condemned a man who suffered
death in consequence, was guilty of murder.
[II] Cas<eZ/'s case, 5'ira. 856. Hug^in's case, S^ra. 882. Bantridge's case, ^ Haf.
State Trials, folio 17. fjuarto 4.52. 2 Paris Sf Fon. Med. Jur. 115. See ante, p. 432, note.
[12] The person killed innst be "a reasonable creature in being, and under the king''8
peace" at the time of the killing. Therefore to kill an alien, a Jew, or an outlaw, who are
all under the king's peace and protection, is as much murder as to kill the most regular
born Englishman, except he be an alien enemy in time of war. To kill a child in its
mother's womb is now no murder. 4 Bl. Com. 197, 198. 3 Inst. 50.
Aitliough to kill a child in its mother's womb is no murder, yet if the child be hajn
alive, and die by reason of the potion or bruises it received in the womb, it is murder in
the person who administered or gave them. 3 Inst. 50. 1 Hawk. c. 31. s. IG. so if a mor-
tal wound be givon to a child wliilst in the act of being born, for instance, upon tlie head
as soon as the head appears, and before the child has breathed, it may be murder, if the
child is afterwards born alive and dies thereof Hex v. Senior, 1 Moody, C. C. 346.
To justify a conviction on an indictment charging a woman with the wilful murder of
HISTORIA PLACITORUM CORONA. 433
But if a man procure a woman with child to destroy her infant,
wlien born, and the child is born, and the woman in pursuance of
that procurement kill the infant, this is murder in the mother, and
the procurer is accessary to murder, if absent, and this, whether the
child were baptized or not. 7 Co. Rep. 9. Dyer 186. [13]
The killing of a man attaint of felony, otherwise than in execution
of the sentence by a lawful officer lawfully appointed, is murder
a child of which she was delivered, and which was born alive, the jury must be satisfied,
affirnnitivcl}-, tliat the whole body was brought alive into the world ; and it is not sufficient
that the child had breathed in the progress of the birth. Rex v. Powlton,5 Car. Sf P. 329.
If a child has breathed, before it is born, this is not sufficiently life to make the killing
of the child murder. There must be an independent circulation in the child, or the child
cannot be considered as alive, for this purpose. Rex v. Enoch, 5 Car. Sf P. 539.
If a child has been wholly produced from the body of its mother, and she wilfully, and
of nialice aforethought, strangle it, while it is alive, and has an independent circulation,
this is murder, although the child be still attached to its mother by the umbilical cord.
Reg. V. Trilloe, 1 Car. ^^- M. 650.
An unskilful practitioner of midwifery wounded the head of a child, before the child
was perfectly born. The child was afterwards born alive, but subsequently died of this
injury : — Held, manslaughter, although the child was in ventre sa mere, at the time when
the wound was given. Rex v. Senior, 1 M, C. C. R. 344; 1 Lewin, C. C. 183. n.
A girl was indicted for the murder of her child, aged sixteen days. She was proceed-
ing from Bristol to Llandogo, and was seen near Tintern, with the child in her arms, at
6 P. M. Slie arrived at Llandogo between 8 and 9 P. M. without the cliild. The body
of a child was afterwards found in the river Wye, near Tintern, which appeared not to
be-tlie child of the prisoner: — Held, that the prisoner must be acquitted, and that she
could not, by law, either be called upon to account for her child, or to say where it was,
unless there was evidence to show that her child was actually dead. Rig. v. Hopkins,
8 Car. 4" P. 591.
A prisoner- was charged with the murder of her new born child, by cutting ofF its
head : — Held, that in order to justify a conviction for murder, the jury must be satisfied
tliat the entire child was actually born into tlie world in a living state ; and that the fact
of its having breathed is not a decisive proof that it was born alive, as it may have
breathed, and yet died before birth. Rex v. Sellis, 7 Car. ^ P. 850.
If a child was slrangled intentionally, while it was connected with the mother by the
umbilical cord, but after it was wholly produced into the world, qutBve, whether this
would be murder? Rex v. Croutchly, 7 Car. Sf P. 814.
An indictment charged that the prisoner, being big with child, did bring forth the
child alive, and afterwards strangle it: — Held, that the jury ought not to convict on this
indictment, unless they were satisfied that the child was wholly born when it was
strangled. Ibid.
The child must be actually wholly in the world in a living state, to be the subject
of a charge of murder ; but if it is wholly born and is alive, it is not essential that it
should have breathed, but the jury must be satisfied that the child was wholly born into
the world, at the time it was killed, or they ought not to convict the prisoner of murder.
Rex V. Brain, 6 Car. Sf P. 349.
If a child be killed after it has wholly come forth from the body of the mother, but is
still connected with her by means of the umbilical cord, it seems that such killing will
be murder. Reg. v. Reives, 9 Car. ^ P. 25.
On a charge of child murder, it appeared that the child must have died before it had
an independent circulation: — Held, that as the child had never had an independent cir-
culation, the charge of murder could not be sustained. Reg. v. Wright, 9 Car. Sf P. 754.
1 Ritss. on Crimes, 485, 4S6, 487.
In this connexion it may be added, that it is a general rule, that no person should be
found guilty of murder, unless the body of the deceased is found ; but this rule must be
taken rather as a caution than as a maxim never to be departed from. 3 C/iit. C. L. 738.
[13] Where one counsels a woman to kill her child when it shall be born, who after-
wards dotii kill it in pursuance of such advice, he is an accessary to tiie murder. 1 Huwh.
c,3l,s.l7.
433 HISTORIA PLACITORUM CORONA.
or manslaughter, as the case happens, and tho there was some
doubt, whether the kiUingof a person outlawed of felony were homi-
cide or no, 2 ^.3. 6. yet it is homicide in both cases. 21 Jlssiz. 41.
Coron. 203.
If a person be condemned to be hanged, and the sheriff be-
head him, this is murder, and the wife may have an appeal. 35 H.
6. 5S (A)
If a man he attaint in ?i prsemunire whereby he is put out of the
king's protection, the killing of him was held not homicide, 24 H. 8.
B. Coron. 197. But the statute of 5 Eliz. cap. \{i) hath now put
that out of question, declaring it to be unlawful. (A^)
If a man kill an alien enemy within this kingdom, yet it is
felony, unless it be in the heat of war, and in the actual exercise
thereof.[14]
f 434 ] III. The third inquiry is, who shall be said a person
killing.
An infant under the age of fourteen, years in presumption of law
is supposed without discretion, and therefore prima facie he cannot
commit murder or manslaughter, but being indicted thereof, upon
not guilty pleaded he ought to be found not guilty.
But if he be above that age, in presumption of law he is of dis-
cretion, and may be guilty.
But if he be under the age of fourteen, yet if upon circumstances
it can appear, that he hath discretion, he may be convict of felony.
3 H. 7. i. b. 12. «.(/)[15]
(7i) See also Co. P. C. p. 52. queere, in case of treason, (where the sentence is, that the
party shall be hanged, but not till he be dead, S(c.) if the king remit all, but the hanging,
whether it be not murder in the sheriff to hang him till he be dead ?
(t) hi fine.
(k) See Coron. 203. wliere it is declared felony to kill one outlawed for felony.
(I) Vide supra, p. 27.
[14] 4 Bl Com. 178. Bracton, folio 120. 1 Hawk. P. C. 70. Dalton, c. 150. Finch,
i. 31. 3 Inst. 52.
[15] Infants under the age of discretion ought not to be punished by any criminal
prosecution whatever. 1 Hawk. P. C. 2. By the ancient Saxon law, the age of twelve
years was established for the age of possible discretion, and tlie age of fourteen as that
when lie became completely liable as one arrived at years of discretion. 4 Bl. Com.
23. The presumption is as stated in the text; a presumption, however, which may be
negatived eitlier to involve those under, or to excuse those over that age : for the capa-
city of doing ill or contracting guilt, (says Blackstone, 4 Com. 23.) is not so much
measured by years and days, as by the strength of tiie delinquent's understanding and
judgment. Under seven years of age, however, an infant cannot be guilty of feluny,
{Mirror, c/t. 4. s. 16.) but at eight years lie may, (Bait. c. 147.) if it be shown that he had
knowledge and understanding, and felonious intent. There are many cases in which
infants under the age of fourteen have been capitally convicted. Foster, 72. In a
comparatively late case in Frifrland, the ancient doctrines were reaffirmed: it was
ruled that if a child more than seven, and under fourteen years of age, is indicted for
felony, it will be left to the jury to say whether the prisoner at the time of the offence,
had a guilty knowledge that he or she was doing wrong. The presumption of law
being tliiit a child of that age has not such guilty knowledge, unless the contrary be
proved by the evidence. Rex v. Owm, 4 Car. S( P. 236. A boy of the age of twelve
years and five months may be convicted on his own confessions of the crime of murder
and executed. The capacity to commit a crime, necessarily supposes the capacity to
confess it. Stale v. Guild, 5 Halst. IS. J. 1G3. See ante, p. 26, note.
HISTORIA PLACITORUiM CORONA. 434
If a man be non compos mentis, and kill a man, he is to plead
not guilty, and shall be acquitted, and is not driven to purchase a
pardon, tho antienlly it was so used. StumfariTs P. C. 16. b. ^-
libros ibi.
And the same law it is of a lunatic, that kills a man in the time of
his lunacy; but if it be in those intervals, when he hath his under-
standing, then he is a felon, sed de his svpru. p. 31. [16]
If there be an actual forcing of a man, as if ^. by force take the
arm of 5. and the weapon in his hand, and therewith stabs C. where-
of he dies, this is murder in ,d. but B. is not guilty, Dalt. cap. 93.
p. 242. (w) Plowd. Com. 19. a.
But if it be only a moral force, as by threatning, duress, or impri-
sonment, (S'c. this excuseth not. [17]
Kfeme covert is in law under the coercion -of her husband, and
therefore, if she commit larciny or burglary together with her hus-
band, the husband is in law guilty, but regularly the wife is not
guilty. Stamf. 26. a. Coron. 160. Dalt. cap.^104. p. 267.{n) [IS]
But if she commit murder, or treason, or manslaughter, it is no
(m) New Edit. cap. 145. p. 473. (n) New Edit. cap. 157. p. 503.
[16] Murder or manslaughter cannot be committed by an idiot, lunatic, or infant,
unless, indeed, he show a consciousness of doing wrong, and of course a di.scretion, or
discernment between good and evil. 4 Black. Com. 195. 1 Haick. c- 1. But if any
person procure an idiot, &,(;. to murder another, the procurer is guilty of murder.
1 Hawk. c. 31, s. 7. Or if he aid and abet him knowing that he entertains mischievous
designs. Reg v. Tyler, 8 C. Sf F. 61G. See ante, p. 37, note.
■ [17] A fear of death, well grounded, may excuse the doing of some acts which, under
other circumstances, would be criminal; as joining rebels, or continuing with them :
but an apprehension, liowcver strong and well founded, of having property wasted or
destroyed, or of suffering any other mischief not endangering the person, will afford no
excuse. Rex v. Gordon, 1 East, P. C. 71. Rex v. McGrowther, 1 East, F. C. 71.
A., who was insane,' collected a number of persons together, who armed themselves,
having a common purpose of resisting the lawfully constituted authorities: A., having
declared that he would cut down any constable who came against him. A., in the pre-
sence of C and D., two of the persons of his party, afterwards shot an assistant of a con-
stable, who came to apprehend A. under a warrant : Lord Denman held, that C. and D.
were guilty of murder, as principals in the first degree, and that any apprehension that C,
and D. had of personal danger to themselves from A., was no ground of defence for con-
tinuing with him after he had so declared his purpose; that it was no ground of defence
that A. and his party had no distinct or particular object in view when they assem-
bled together and armed themselves; and that the apprehension of personal danger does
imt furnish any excuse for assisting in doing any act which is illegal. Reg v. Tyler,
8 Car. 4" P. 616.
[18] Although a wife cannot commit larceny in the company of her husband, for it is
deemed his coercion and not her voluntary act, yet, if she do it in his absence, and by
his mere command, she is then punisiiable as if she were sole; and the husband, it is
said, may be accessary to the wife. Anon. 2 East, F. C. 559. When a felony is com-
mitted by the wife in the presence of the husband, it is a presumption only and not a con-
clusion of law, that it is done under his coercion. Rex v. Hughes, 2 Lewin, C. C. 229.
See Conolh/s case, 2 Lewin, C. C. 229. Rex v. Morris, R. <^- R. C. C. 270. 1 Russell,
18. Rex V. Dix, 1 Russell, 16. Rex v. Archer, R. t^- M. C. C. 143. Rex v. Morris,
2 Leach, C. C. 1096. Rex v. Atkinson, 1 Russell, 20. Rex v. Hassall, 2 Car. i^ P.
434. Res V. Woodward, 8 Car. S^- P. 561. Rex v. Knight, 1 Car. ^y /'. 1 16 Rix v.
Price, 8 Car. <^ P. 19. Reg v. Cruse, 8 Cur. 4- P. 341. 2 M. C. C. R. 53. 4 BL
Com. 28. See ante, p. 45, note.
434 HISTORIA PLACITORUM CORONA.
plea to say she did it by coercion of her husband, but she is guilty,
tho committed with her husband. Bait. lbid.\\%^
[ 435 ] CHAPTER XXXIV.
CONCERNING COMMANDING, COUNSELLING, OR ABETTING OF MURDER
OR MANSLAUGHTER.
Altho this title may seem more proper under the title oi principal
and accessaries, yet because it relates to the inquiry, who shall be
said a murderer or manslayer, and is common in some respects to
both crimes, I shall take up the consideration thereof here'.
He that counsels, commands, or directs the killing of any person,
if he be absent, is an accessary to murder before the fact.
In case of poisoning, he that counsels another to give poison, if
that other doth it, the counseller, if absent, is but accessary before
Coke P. C.p. 49. Sir Thomas Ouerbitr^'s case.(a)
But he that actually gives or lays the poison to the intent to poi-
son, tho he be absent, when it is taken by the party, yet he is princi-
pal, and this was Weston's case, (6) Co. P. C. p. 49. in Sir Thomas
Overbury^s case, and 4 Co. Rep. 44. b. Vaux's case.
. In case of murder, he that counselled or commanded before the
fact, if he be absent at the time of the fact committed, is accessary
before the fact, and tho he be in justice equally guilty with him that
commits it, yet in law he is but accessary before the fact, and not
principal. ,
If ^^. commands B. to beat C. and he beats him so that he dies
thereof, it is murder in B. and *^. if present, is also guilty of the
oflense, if absent, he is accessary to murder. Dalt. cap. 93.(c) Plowd.
Com. 475. b. Co. P. C.p. 51. 2> E. 3. Coron. 314.
\i Ji. counsel B. to poison his wife, B. accordingly obtains'
[ 436 '\ poison from ./^. and gives it to his wife in a roasted apple,
the wife gives it to a child of B. not knowing it was poison,
who eats it and dies, this is murder in B. tho he intended nothing to
the child. Plowd. Com. 474. Saunder''s case: and so it is, if an apo-
thecary send a potion to the wife, and the husband mingle poison
with it, and upon some dislike of the physic the apothecary is sent
for, who to justify it to be wholesome voluntarily eats part of it, and
(a) See Slate Tr. Vol. I. p. 331. (c) New Edit. cap. 145. p. 472.
(Jb) State Tr.Vol. I./). 313.
[19] 4 Bl. Com. 28. 1 Hawk. I'. C. 3. Wif*e not guilty of any breach of duty, in ne-
glectinw- to provide an uppreiifice of her Iiusband with sufHcicnt food and necessaries,
whereby he died, as she was only the servant of her husband. Rex v. Squire, 1 Rus-
sell, 16.
HISTORIA PLACITORUM CORONA. 436
is poisoned and dies, this is murder in B. tho the apothecary was
never intended to be hurt, but voluntarily look it. 9 Co. Rep. 81.
Ji^nes Gore^s case.
But in this case, he who was absent, and counselled the poisoning
of the wife, is not accessary to the murder, because as to him the
command shall not be construed further, than as to the person in-
tended by him. Plowd. Com. 474. Saunder^s case.{d)
l( ,/i. counsel or commands B. to beat C. with a small wand or
rod, which could not, in all human reason, cause death, if ^. beats
C. with a great club, or wound him with a sword, whereof he dies,
it seems, that ^'i. is not accessary, because there was no conmiand
of death, nor of any thing, that could probably cause death, and B.
hath varied from the command in substance, and not in circum-
stance.
If t^. command or counsel B. to kill C. and before the fact done
t/9. repents, and comes to B. and expressly discharges him from the
fact, and countermands it, if after this countermand B. doth it, it is
murder in B. but .^. is not accessary, but if ^. repent of it, but before
any discharge orcountermand given to B. B. kills C. yet »^. remains
accessary notwithstanding his private repentance, for in as much as
his express counsel or command occasions the fact, he must at his
peril see, that he countermand B. and so remedy as much
as in him lies the mischief, that his former command occa- [ 437 1
sioned. Co. P. C. p. 51. Plowd. Com. 476. a. Saiinder's
case.
In manslaughter there can be no accessaries before the fact, for it
is presumed to be sudden, for if it were with advice, command, or
deliberation, it is murder and not manslaughter, and the like of se
defendendo.
And therefore in an indictment of manslaughter only, if others be
indicted as accessaries before the fact, the indictment is void against
them.
And if j1. be indicted of murder, and B. as accessary before by
procurement, 4'c. and ,j3. is found guilty only of manslaughter, B.
shall be discharged. 4 Co. Hep. 43. b. Goffe versus Bibilhe a.nd Hodl
David.
And anciently, he that struck the stroke, whereof the party died
was only the principal, and those, that were present, aiding, and
assisting, were but in the nature of accessaries, and should not be put
upon their trial, till he that gave the stroke were attaint by outlawry
or judgment. 40 Ass. 25. 40 E. 2. 42. a.
But at this day, and long since, the law hath been taken otherwise,
and namely, that all that are present, aiding, and assisting, are equally
. (d) But tho the judges were of opinion in this case, tliat he was not accessary, yet
they thought it properest tliat he should be delivered rather by a pardon, tlian otiiervvise,
and accordingly they kept him in prison from one session till another, till he procured a
pardon; and master Plowden, the reporter, says, it was his opinion, that whoever coun-
sels or commands an evil thing should be adjudged accessary to all which follows from
tliat evil action, but not from any other distinct thing.
437 HISTORIA PLACITORUM CORONA. .
principal with him that ga-ve the stroke, whereof the party died. 4 H.
7. IS. a- per omnes justiciarios ntriusque band, for tho one gave
the stroke, yet in interpretation of law it is the stroke of every per-
son, tliat was present, aiding, and assisting, and tho they are called
principals in the second degree, yet they are principals, and the law
was altered herein, in tempore H. 4 Ploivd. Com. 100. a. and there-
fore, if there be an indictment of murder or manslaughter against ./?.
that A. felonice, ^-c. percnssit B. whereof lie died, and that C and D.
were present,abetting, aiding, and assisting to r^. «f//e/onmm 8^' mur-
drum S^-c. niodo Sj- forma prsedictd f(iciend\ and J2. appears not, but
B. and C. appear, they shall be arraigned, and receive their judgment
if convict, tho A. neither appear, nor be outlawed. Plowd. Com. 97.
and 100. Gyt tin's case.
\i A. be indicted as having given the mortal stroke, and B. and C.
as present, aiding, and assisting, and upon the evidence it
("438] appear that B. gave the stroke, and Ji. and C were only
aiding and assisting, it maintains the indictment, and judg-
ment shall be given against them all, for it is only a circumstantial
variance, for in law it is the stroke of all that were present, aiding,
and abetting. Ploivd. Com. 98. a. 9 Co. Rep. 67. b. Mackally^s case.
Yet the circumstances of the case may vary the degree of the
offense in those that are in this kind parties to the homicide.
\i t/i. have malice against B. and lies in wait to kill him, and C.
the servant of.^. being present, but not privy to the intent of his
master, finds his master fighting with B. takes part with his master,
and the servant or master kill B. this is murder in A. because he had
malice forethought, but only homicide in C. PIovkI. Com. 100. b.
Salisbury'' s case, where it was also resolved, that where Ji. had ma-
lice against D. the master of ^. but by mistake assaults and kills B.
the servant, or having malice against D. the master, and B. his ser-
vant, comes in aid of his master, and Ji. kills him, it is murder ni Ji.
as much as if he had killed the master, for the malice shall be carried
over to make the killing of i9. murder.
Upon an indictment of murder, tho the party upon his trial be
acquit of murder, and convict of manslaughter, he shall receive judg-
meiu, as if the indictment had been of manslaughter, for the offense
in substance is the same.
And upon the same reason it is in case of malice implied, if .^. B.
and C. be in a tumult together, and D. the constable comes to ap-
pease the affray, and Ji. knowing him to be the constable, kill him,
and B. and C. not knowing him to be the constable, come in, and
finding./^, and J), struggling, assist and abet ./^. in killing the consta-
ble, this is murder in Jl. but manslaughter in B. and C.
To make an abetter to u murder or homicide principal in the felo-
ny, there are regularly two thnigs requisite, 1. He must be present.
2. He must be aiding and abettnig ad fcloniam ^" murdrum, sive
homicidium.
If he were procuring, or abetting, and absent, he is acces-
r 439 ] sary in case of murder, and not principal, as hath been shewn,
unless in some cases of poisoning, ut supra.
HISTORIA PLACITORUM CORONA. 439
If he be present, and not aiding or abetting to the felony, he is
ueither principal nor accessary.
If A. and B. be fighting, and C. a man of fnll age comes by chance,
and is a looker on only, and assists neither, he is not gnilty of murder
or homicide, asf>rincipal in the second degree, but it is a misprision,
for which he shall be fined, unless he use means to apprehend the
felon. 8. E. 2 Coron. 395. 3 E. 3. ibidem 293. 14 H. 7. 31. b. Stam-
ford's P. C. 40. b. Dalton, cup. lOS. p. 2SA.{e)
Therefore it remains to be inquired, 1. Who shall be said to be
present. 2. Who shall be said abetting, aiding or assisting to the
felony.
I. As to the first: if divers persons come to make an affray, 4*c.
and are of the same party, and come into the same house, but are in
several rooms of the same house, and one be killed in one of the
rooms, those that are of that party, and that came for that purpose,
tho in other rooms of the same house, shall be said to be present.
Dull. cap. 93. p. 241. (/)
The lord Uacre and divers others came to steel deer in the park
of one Pelham, Rayden one of the company killed the keeper in
the park, the lord Dacre and the rest of the company being in other
parts of the park, it was ruled, that it was murder in them all, and
they died fo»* it. Crompt. 25. a. Dalt. ubi supra, 34 H. 8. B. Co-
ron. 172.(5-)
The like in case of burglary, tho some stood at the lane's end or
field-gate to watch if any came to disturb them, Co. P. C.p. 64. 11
H. A. 13 b. yet they are said to be burglars, because present, aiding,
and assisting to the burglary.
II. Who shall be said abetting, aiding and assisting.
If A. comes and kills a man, and B. rnns with an intent to be
assisting to him, if there should be occasion, tho de facto he doth
nothing, yet he is principal being present, as well as Ji. 3 E. 3. Co-
ron. 309.
If divers come with one assent to do mischief, {male f aire)
as to kill, rob or beat, and one doth it, they are all princi- [440"]
pals in the felony, (^-c. 3 E. 3. Coron. 314.
\{ A. and divers others in his company intending to rob a person
charge him with felony, and as they are carrying him to gaol, some
of the company rob the person attached, this is robbery in all, but if
the rest of the company come without any such intent, it seems they
are not guilty. 3 E. 3. Coron. 350.
If .,^. comes in company with B. to beat C. and B. beats C. that
he die, A. is principal, but then, according to those elder times, the
indictment must not be only, that he was present, aiding, and assist-
ing, for that, as the law was then taken, makes him only accessary,
but the indictment mu.st shew the special matter, that they came to
that intent, 19 ^. 2. Coron. 433. but now that course is altered, and
(e) New Edit. cap. 161. p. 527. (/) New Edit. c.ip. 145. p. 472.
{g) See also Moor 86. Kelyuge 56. ' '
440 HISTORIA PLACITORUM CORONA.
the indictment only runs, that A. was present, aiding, and assisting,
and that is sufficient to make iiim principal.
So if Ji. being present command B. to kill C. and he doth it, both
are principals. 13 H.l. 10. «.(A)
If many be present, and one only gives the strc^e, whereof the
party dies, they are all principals, if they came for that purpose.
21 E. 4. 71. a.
The case of Drayton Basset reported by Mr. Crompton, fol. 28.
was- this: ./?. with thirty others and more entered with force uppu
the manor-house of Drayton Basset, and ejected B. his children,
and servants out of the same ; afterwards twenty others on the
behalf of B. three days after, in the night, came with weapons vvith
intent to re-enter, and one of the twenty, about ten of the clock in
the night, cast fire into a thatcht house adjoining to the house,
•whereupon one that was in the house shot otf a gun, and killed
one of the party of B. and then the rest of the party of B. fled, and
Jl. and his company continued the forcible possession of the house
for many days after, whereupon t^. and twenty-seven more
[ 441 ] were indicted of murder, and arraigned in the king's bench,
and the matter aforesaid given in evidence against him, and
Mich. 22 4' 23 Eliz. he was found guilty of manslaughter, & divers
outres de rioters, que fueront in le meason al temps, que le home
fuit tue, fueront arraigns come principals, coment que ne assent al
setter del gunne ne al tuer, purceo que fueront la illoyalment assem-
blies, & in forcible manner gard le meason one Ji. que fuit convict.
And consonant to this is Mr. Dalton, p. 241. (e) in these words:
" Note also, that if divers persons come in one company to do any
unlawful thing, as to kill, rob or beat a man, or to commit a riot, or
to do any other trespass, and one of them iii doing thereof kill a man,
this shall be adjudged murder in them all that are present of that
party abetting him, and consenting to the act, or ready to aid him,
altho they did but look on.
A man seizeth the goods of a Frenchman in time of war, and
carries them" to his house, a stranger pretending to be deputy-
admiral with a great multitude of men came with force to the
house, where the goods were, and at the gate of the house made
an assault upon them that were in the house, a woman issued out of
the house without any weapon, and is killed by one of the servants,
who came to take the goods, by throwing a stone at another, that
was in the gate, and the person, that came to seize the goods, said,
(before his coming) he would make him a cokes that kept the goods
and would make him to know the basest in his house. By five
judges, two Serjeants, the queen's attorney, and solicitor, it was
held, that if it appear that the woman came in defense of the
master of the house, then it was murder in the vice-admiral and all
(h) This ■case was something more tlian a l^are command, for one hold him, while the
other killed him; but wliat our author hero says is jnorc directly proved by the case in
A.n.i. 18. «.
{i) New Edit. p. 472.
HISTORIA PLACITORUM CORONA. 441
his companions : but by other five judges contrary, for no malice
was against the woman, and murder shall not be extended further,
than it was intended', and the former held, that if JI. and B. fight by
appointment betore-hand, and a stranger comes between
them to part them, and he is killed by A. it is murder in [] 442 ]
him, and some said in both, but the others noluerunt ad
hoc concordare. Mansell and Herbert^s case, H. 2 S,- 3 P. 4' M.
Dyer 12S. 6. •
That point, wherein the judges differed, was whether, the -mistake
of the person excuseth it from murder, but it seems not questioned,
but ail agreed it manslaughter, and that not only in him, that gave
the blow but in all the companions of that party: but now the
former point is sufficiently settled, that if it had been murder, in
case the man had been killed, that was meant, it is murder in
killing the woman, and that, whether she came as a partizan to
Mansell, the owner of the house, or not, quod vide supra: and in
the last case put, in Herberts case before, it is certainly murder in
him that kil's the man that comes to part them, and if it had been
only a sudden quarrel, it had been manslaughter in him that kills
him, and Dalt. cap. 93. p. 240.(/t) yea, and if the combating were
hy malice prepense, it it is held, that the killing of him, that comes
to part them, is murder in both, and both were hanged for it, be-
cause each of them had a purpose to have kild the other. 22 E, 3.
Corone 262. Lambert out of Dallison^s report, p. 217. but that
seems to- me to be mistaken, it is not murder in both, unless both
struck him that came to part them; and by the book of 22 t/2ss.
1\. Coron. ISO. (which seems to be the same case, tho more at
large,) he only that gave the stroke, had judgment, and was exe-
cuted.(/)[!]
And therefore it is a mistake in those that say, if it be not
known which of them did it, they shall both have judgment, for
the jury ought precisely to inquire, and upon circumstances to sa-
tisfy themselves, whether the one, or the other, or both did it, and
neither to acquit, nor convict both, because they know not who
did it.
But to return to the aiders and abetters again.
By the cases of Drayton Basset and Herbert it appears, that if
many come to commit a riotous unlawful act, if in the pursuit of that
action one of them commits murder or manslaughter, they
are all guilty, that are of that party, that committed the dis- [ 443 ]
order; wherein nevertheless these things must be observed.
1. In that case it must be intended, when one of the same party
Qc) New Edit. cap. 145. p. 472.
(/) Tlie other doth not appear to have been before the court, but upon puttingf the
case, the court said, he that struck is guilty of felony, but said nothing as to him who did
net strike.
[1] Dyer, 128. Kel. Ill, 112, 1]7. Foster, 261. 1 Hawk. c. 31. s. 42. Slate w, Cooper,
1 Green, [N. J.) State v. Bentry, 2 Dev. ^ Bat. 19G.
VOL. I. — 38
443 HISTORIA PLACITORUM CORONA.
commits the murder or manslaughter upon one of the other party, or
upon those that came to appease or part them, or by due course of
law to disperse them.
' And therefore I have always taken the law to be, that if *^. and
B. have a design to fight one with another upon premeditation or
malice, and ^. takes C. for his second, and B. take D. for his second,
t/i. kills B. in this case C. is principal, as present, aiding, and abet-
ting, but D. is not a principal, because he was of the part of him,
that was killed, and yet I know, that some have held, that D. is
principal as well as C. because it is a compact, and rely much upon
tl)e book of 22 E. 3. Coron. 262. before-mentioned, but, as I think,
the law was strained too far in that case, and so it is much more
in making D. a principal in the death of B. that was his friend,
tho it be, I confess, a great misdemeanor, yet I think it is not mur-
der in D.
And the books in all the instances of this nature say, that it is
murder or manslaughter in that party, that abetted him,(*) and con-
sented to the act, that Z>. never abetted A. to kill B. but abetted B.
indeed to have killed t^.[8]
2. It must be a killing in pursuit of that unlawful act, that they
were all engaged in, as in the case of the lord Dacre before-men-
tioned, they all came with an intent to steal the deer, and conse-
quently the law "presumes they came all with intent to oppose all
that should hinder them in that design, and consequently when one
killed the keeper, it is presumed to be the act of all, because pursuant
to that intent: but suppose, thai A. i?. and C. and divers others come
together to commit a riot, as to steal deer, or pull down inclosures,
and in their march upon tjieir design, t/^. meets with D. or some other
with whom he had a former quarrel, or that by reason of some col-
lateral provocation given by D. to A. A. kills him without any abet-
ting by any of the rest of liis company, this doth not make all the
(*) Yiz. who committed the homicide.
[2] When upon a previous agreement, and after there has been time for theblood to cool,
two persons meet with deadly weapons, and one of them is killed, the party who occa-
sions the death is guilty of murder, and the seconds also are equally guilty ; and with
respect to others shown to be present, the question is, did they give their aid and assist-
ance by their countenance and encouragement of the principals in the contest? Merc
presence will not be sufficient; but if they sustain the principals, cither by advice or
assistance, or go to the ground for the purpose of encouraging and forwarding the un-
lawful conflicts, although they do not say or do any thing, yet, if they are present assist-
ing and encouraging by their presence at the moment when the fatal shot is fired, they
are, in law, guilty of the crime of murder. lieg.y. Young, 8 Car. eSf P. 644.
If two persons diliberatcly fight a duel, and one of them be killed, the other and bis
second are guilty of murder. 1 Hawk. c. 31. s. 31. liix v. Onel.y,2 Sb-unge, 776. No
matter how grievous the [)rovocation, or by which p;irty given. The second of the
deceased also is now deemed guilty of murder, as being present, aiding and abetting;
and altliougli Lord Hale scorns to think the rule of law, as to |)rincipals in the second
degree, too far strained in that case, yet in several late cases it has been laid down that
boili the seconfls arc guilly, if they are present assisting and encouraging. Sec Smith v.
The. Sl„te, 1 Yerger, 228. Tiwcrnie's case, 3 liulstrode, 171-2. 1 Roll. Hep. 361. Hex
V. Murphy, 6 (J. df P. 103. Jirg v. Caddij, 1 Car. Sf P. 210. Foster, 297. 4 ^l. Com.
I'Jl. 3 inst. 51. Rex v. Rice, 3 East, Gtil, post, 453.
HISTORIA PLACITORUM CORONA. 444
party oft/?, tho present, to be therefore aiding and abetting, and con-
sequently priiicipals in this murder or manslaughter, which was acci-
dental, and not within the compass of their original intention.
But if, when they had come to steal the deer, or throw down the
inclosure, any had opposed them in it, either by words or actual re-
sistance, and A. had killed him, it had been murder in all the rest
of the company, that came with the intent to do that unlawful act,
tho there were no express intention to. kill any person in the first
enterprize, because the law presumes they come to make good their
design against all opposition.
And this is the reason of the book 3 E. 3. Coron. 350. where many
came to commit a disseisin, and one was killed, and all that were of
the company were arraigned as principals, and the fact found and
they were condemned, tho the jury said they did nothing {de male
voliint) of malice, but were of the company; tho possibly, as the cir-
cumstances of that case were, it was only manslaughter, as in the
case of Drayton Basset, because it was upon a sudden, and upon a
pretense of title.
3. Again, altho if many come upon an unlawful design, and one of
the company kill one of the adverse party in pursuance of that de-
sign, all are principals; yet if many be together upon a lawful account,
and one of the company kill another of an adverse' party without
any particular abetment of the rest to this fact of homicide, they are
not all guilty that are of the company, but only those, that gave the
stroke, or actually abetted him to do it.
There is a common nuisance committed in the highway by A. B.
C. D. in the vill of M. and E. F. G. H. J. <§-c. and twenty more of
the inhabitants of M. come to remove the nuisance, Jl. B. C. and D.
oppose, F. strikes A. suddenly, and kills him, F. is guilty of man-
slaughter, but the rest of the party of F. are not therefore guilty,
barely upon this account that they were of the company, but only
such of the company, as did actually assist or abet F. to strike or kill A.
But if in truth it were no nuisance, but an act that was lawfully
done by A. and then JJ. had been killed by F. all the rest of the
party and company of F. had been guilty, that came with
design to remove Ihat which they thought a nuisance, but [445]
was not, because it was a riotous and unlawi'ul assembly.
If t/^. hath a good title to his house, or hath been in possession
thereof tor three years, (in which case he may detain it with force by
the statute of 8 H. 6. cap. 9.) if any person come to rob him or kill
liinr, and he shoot and kill him, it is not felony, nor doth he forfeit
his goods, as in case of homicide se defendenilo. 11 Co. Rep. 82. b.
5 Co. Rep. 91. h.
But '\{ A. comes to enter with force, and in order thereunto shoots
at his house, and B. the possessor, having other company in his house,
shoots and kills A. this is manslaughter in B. and so it is ruled
5 Eliz. in Hdrcourt^s case, Crompt. 29. a. Dalt. cap. IS. p. 105. (m)
Ibid. cup. 98. p. 250.(n)
(m) New Edit, cap. 121. p. 427. (n) cap. 150. p. 483.
445 HTSTORIA PLACITORUM CORONA.
And in this case, if B. shoot out of liis house, and killeth ^. I
think it plain, that it is not felony in the rest of the honsehold, nay,
tho he had hired extraordinary company to help to guard his house
upon such an occasion, (as by law it seems he may do, notwithstand-
ing the opinion of Crompton,fol. 70. u. to the contrary, vide 21. H.
7. 39. a. 5 Co. Rep. Q\. b. Seamati's case,. 11 Co. Rep. 82. b. Leioes
Bowlegs case) yet this is not manslaughter in the rest of the com-
pany, because the assembly was lawful and justifiable.
And therefore in that case, no others of the company, that are in
the liouse, shall be said guilty, but only such as actually abet him to
do the fact; and these indeed will be principals by reason of actual
abetting, but not barely upon the account of being in the house, and
jof the same company, because the assembly to defend the house by
lawful means was lawful.
But in the case of a riotous assembly to rob, or steal deer, or do
any unlawful act of violence, there the offense of one is the offense of
all the company; as in the case of the lord Dacre, and of the house
of Drayton Basset, where there was first a riotous and unlawful
entry, and keeping possession by those that shot.
4. If there be many, that are present, abetting, aiding,
r 446 ] and assistuig, tho all may, as in the cases afore shewn, be
guilty of homicide, yet upon different circumstances some
may be guilty of homicide, and not of murder, others may be guilty
of murder; vide the case o{ Salisbury before, Ploivd Com. 101. a.
The master assaults with malice prepense, the servant being igno-
rant of the malice of his master, takes part with his master, and kills
the other, it is manslaughter in the servant, and murder in the master.
Upon a sudden falling out between ^. and B. in the street, ./?.
gathers^ many of his friends together to assault B. and B. doth the
like, the constable, and some .in his aid, come to part the affray, and
keep the peace. Jl. hath notice, that he is the constable, but divers
of his company know it not, nor could reasonably or probably know
it, ^. kills the constable, this is murder in Jl. but the rest of his
company, that knew it not^ are not guilty of the murder.
But such of them, as knowing it to be the constable, yet abetted
^. to kill him, are guilty of murder, those that knew it not, and
■yet abetted J2.\o kill him, are guilty of manslaughter; and those, that
neither knew him to be the constable, nor did actually abet nor assist
^. to kill him, are not guilty, as it seems, because this was a new
emergency, and out of the bounds and verge of the quarrel, wherein
they were before engaged, and such whereunto these were not privy;
quod I amen (juxre.\^o)
Sec Foster 121-131. and his discourse III. p. 341. — per lot. 4 Blacks. Com. ch. 3.
p. 34-40. See Index to I Hawk. P. C. tit. Accessary. '
[3] One who procures, counsels, or commands another, but is absent when the crime
is consurinnatcd, is an accessary before the fact. I'ost, 612. G1.5,G16. Dyer., I8G. 3 Ind.
108. 139. 2 Hawk. P. C.315-VJ. Foster, 73. 125.361. 1 Moody C. C..417. 7 C. <.^ F.
836. 4 Bl. Com. 3,'). 40. 323.
If several persons meet together for the prosecution of some ui^lawful design, and in
HISTORIA PLACITORUM CORON.^. 446
furtherance of that design a man be killed, tlie gfuilt of the iiillin^ will attacii to all pre'-
senl, whetlier it be murder or manslaughter. Foster, 2G1. M'jickiin''s case, 2 Leu}. 225.
As to what will excuse persons otherwise liable as accessaries, see ante 52 et seq. Rex
V. Sawyer, 1 Russ. 424. Rex v. Dyson, R. Sg R. C. C. 523. Reg. v. Tyler, 8 C. df
F. 616.
On indictment for murder against several, one cannot be convicted of an assault com-
mitted on the deceased in a previous scuffle, such assault not being in any way con-
nected with the cause of death. Re^. v. t kelps, 2 M. C. C. R. 240.
All present at the time of committing an otfence are principals, although one only
acts, if they are confederated and engaged in a common design, of which the offence is
part. Rex v. Tattersall, 1 Russ. 22. Rex v. Dyson, R. ^ R. C. C. 523.
AH those who assemble themselves together, with an intent, even to commit a tres-
pass, the execution whereof causes a felony to be committed, and continue together,
abetting one another till they have actually put their design into execution, and also,
ail those who are present when a felony is committed, and abet the doing of it are prin-
cipals in felony. Reg^. v. Howell, 9 Car. Sf F. 437.
Where persons combine to stand by one another in a breach of the peace, with a
general resolution to resist all opposers, and in the execution of their design a murder is
committed; all of the company are eciuajly principals in the murder, though at the time
of the fact some of them were at such a distance as to be out of view. Reg. v. Howell,
cited supra.
If several are out for the purpose of committing a felony, and upon an alarm run dif-
ferent ways, and one of them maim a pursuer, to avoid being taken, the others are not
to be considered principals in such act. Rex v. White, R. S^ R. C. C. 99.
If a charge against an accessary is, that the principal felony was committed by per-
sons unknown, it is no objection that the same grand jury have found a bill imputing
the principal felony to another person. Rex v. Bush, R. tSf R. C. C. 372.
It is nut essential that there should have been any direct communication between an
accessary before the fact and the principal felon. It is enough if the accessary direct
an intermediate agent, to procure another to commit a felony, and it will be sufficient
even if the accessary does not name the person to be procured, but merely directs the
agent to employ some person. Rex v. Cooper, 5 Car. 6f P. 535. Rex v. Morris, 2 Leach
C. C. 1096. Rex v. Giles, R. ^ M. 166. Rex v. Badcock, R. S^ R. C. C. 249. Rex v.
Stewart, R. 6; R. C. C. 363.
If A. is charged in the indictment as principal, and B. as accessary, and the jury find
B. to be the principal and A. the accessary, the indictment is sustained. Statev. Mairs,
Coxe, N. J. 453.
Tiie crime of an accessary before the fact to a murder is murder. The Feople v.
Mather, 4 Wend. 229.
An accessary in a capital felony cannot be tried without his own consent when the
principal has died before conviction. Commonwealth v. FhiUips, 16 Mass. 423. But he
must answer to an indictment charging him as accessary to two principals, one of whom
only has been convicted, the other liavmg died. Conimonwealth v. Kiiapp, 10 Pick. 477.
Conviction of the principal is prima facie evidence of his guilt, on the trial (jf an ac-
cessary, and throws the burden of proof, as to his innocence, on the accessary; but the
accessary is not ms^tricted to the proof of new facts. Idem..
The charge of King, P. in the case of Daily (4 Penna. Law J., 155, Philadelphia, 1845,)
contains an excellent summary of the common law doctrine of the responsibility of per-
sons engaged in unlawful combinations resulting in death. "When divers persons, (says
Judge King) resolve generally to resist all officers in the commission of a breach of the
peace, and to execute it in such a manner as naturally tends to raise tumults and affrays,
and in doing so happen to kill a man, they are all guilty of murder, for they must at their
peril abide the event of their actions, who unlawfully engage in such bold disturbances
of the public peace in opposition to, and in defiance of the justice of the nation. Malice
in sucii a killing is implied by law, in all who were engaged in the unlawful enterprise;
whetiicr the deceased fall by the hand of the accused in particular, or otherwise, is im-
material. AH are responsible for the acts of each, if done in pursuance and furtiierance
of the common design. This doctrine may seem hard and severe, but has been found
necessary to prevent riotous combinations committing murder with Impunity. For
when su-jh illegal associates are numerous, it would scarcely be practicable to establish
the identity of the individual actually guilty of the homicide. When, however, a homi-
cide is committed by one or more of a body unlawfully associated, from causes .having no
446 HISTORIA PLACITORUM CORONA.
connexion with the common object, the responsibility for such homicides attaches ex-
clusively to its actual perpetrators."
If several persons combine to commit murder, and before the killing is actually
effected, one of them withdraws from tlie combination and leaves the others, doing no-
tiling to aid or encourage them in any way, he is not responsible for their acts, although
they carry out the object of the original combination by committing murder. Common-
wealth V. Hnuphey, M S. before the Oyer and Terminer for Philadelphia county, March,
1845. King, President. See also, U.S. v. Cornell, 2 Mason, C. C. R. 91. U. S. v. Ross,
1 Gallison, C. C. R. 524.
He who kills another upon his desire or command is, in the judgment of the law, as
much a'murderer as if lie had done it merely of his own head. 1 Hawk. c. 21, s. 6; Saw-
yer's case, O. 5. 1815, MS. 1 Riiss. 485.
If two persons mutually agree to commit suicide together, and the means employed
to produce death only take effect on one, the survivor will, in point of law, be guilty of
the murder of the one who died. R. v. Alison, 8 Car. ^ P. 418.
If one counsel another to commit suicide, and the other, through the influence of the
advice, kill himself, the adviser is guilty of murder as principal. The presumption of
law in such case is, that the advice had the effect intended by the adviser, unless the
contrary be shown. Commonivealth v. Bowcn, 13 Mass. 359. See Rex v. Dyson, R. Sf
R. C. C. 523. 1 Hawk. P. C. c. 27, s. 4.
But Alderson, J. in Regina v. Leddinston, 9 C. Sf P. 79, ruled that a person cannot be
tried for inciting another to commit suicide, although that other commit suicide.
[447]
CHAPTER XXXV.
CONCERNING THE DEATH OF A PERSON UNKNOWN, AND THE PROCEED-
INGS THEREUPON.
Because this chapter as well concerns murder as mayislmis^hter.,
before I come to examine the particular offenses themselves, I shall
subjoin a few words touching* this title.
Antiently there was a law introduced by Caniitiis the Dane, that
if any man were slain in the fields, and the manslayer were unknown,
and could not be taken, the township, where he was slain, should be
amerced to sixty-six marks,(*) and if it were not sufficient to pay it,
the hundred should be charged, unless it could be made appear be-
fore the coroner, upon the view of the body, that the party slain were
an Englishman, and this making it appear was varicfiis, according
to the custom of several places, but most ordinarily it was by the
testimony of two males of the part of the father of him that was
slain, and by two females of the part of his mother.
And this amercement was usually called murdrum ; and the pre-
sentment and proof, that the party slain was an Englishman, was
called Englesbury, and presentment of Engleshury.
And this was tlierefore provided to avoid the secret murder of the
Danes, who were hated by the English, and oftentimes privily mur-
(*) Sec the laws nf Edward the confessor, Lih XV. Sf XVI. by which it appears the
amerciament was XLVI. marks, and not LXVI. marks, as Bracton says, whicli mistake
might probably be occasioned, as Wilkins observes in liis notes ad Leg. Anglo-Sax.
p. 280. by thq transposition of the numeral letters L and X.
HISTORIA PLACITORUM CORONA. 447
dered ; this appears by Bracton,{a) and is transcribed out of him by
Stomf. Lib. I. cup. 10. fol. 17.
When JVillicnn the first came in, he found the like animosity by
the Danes and Saxons against the French and Normans, who were
many times secretly icilled by the natives, and therefore he did in
effect continue this lavv,(J) only he applied it to the French
and Normans, viz. that if a person were slain by an un- [ 448 ]
known hand, if he were a Frenchman or a Norman, the
hundred was amerced, where he was found, and if they were
insufficient, then the county, which was sometimes 36/. some-
times 24/.
And tho this was instituted for the preservation of the French and
Normans, yet intermarriages happening between the natives and
them, so that in process of time they became, as it were, one people,
the same custom was continued as to all persons that were killed by
unknown hands, and this amerciament was called murdrum.^
This appears at large by the black book of the Exchequer written
by Gervasius Tilbiiriehsis, Lib. I. cap. Quid niitrdrum, &r qnare
sit dictum, which expounds the true scope of the statute of Marl-
bridge, cap. 2G. Quod miirdriim de cxtero non adjudicetur pro
niortuo per infortunium.
But as well the presentment of Englesbery, as the amerciament
for secret homicide by persons unknown, was taken away by the
statute of 14 E. 3. cap. 4. yet there remained a certain amerciament
upon the township, where a person was slain, and the offender
escaped, viz. If a person were slain in the day-time, in a town walled,
or not walled, the town is to be amerced, if the vill be not suffi-
cient, the hundred shall be charged, and on default of them the
county.
If he be slain in the day-time out of any vill, the hundred shall be
amerced, and on their disability the county shall be charged with the
amerciament.
If a man be killed either in day or night, and the offender be taken
and committed to the constable, or to the vill, if he escape, the town-
ship where the party was slain, or where the offender was taken,
shall be fined. (/>)
But if a person be slain in the day or night in a walled town, and
the offender be not taken, the town or city shall be fined.
If any private person be present when a murder or man-
slaughter is committed, and doth not his best endeavour [449]
to apprehend the malefactor, he shall be fined and impri-
soned.
All which differences appear by comparing the books of Stamf.
(a) Lib. III. de corona cap. 15. p. 134. b. vide Spelm. verb. Engleckeria. Blacks. Com.
Lib. IV. cap. 14. p. 195.
(t) Vide Leg. Gul. Con. I. 2G. Sf Leg. Hen. I. I. 91. Wilk. Leg. Anglo-Sax.p. 224. 280.
t By tlie word " murder" in g^rants, the grantee claimed to have amerciaments of mur.
derers. Bro. tit. quo icarranto. HI. 2.
{b) For the vill is not discharged till he be delivered into goal, or to the custody of
the sheriff, after which the sheriff will be chargeable. Stamf. If. C. cap. 31.
449 HISTORIA PLACITORUM CORONA.
P. C. cap. 30 4' 31. Coke P. C. cap. 1. p. 53. 3 H. 7. cap. 1. and, the
books there cited.[lj
— s:^ —
[1] All persons who are present when a felony is committed, or a dang-erous wound
given, are bound to apprehend the offender, on pain of being- fined and imprisoned for
their neg-lect, unless they are under age at the time. 2 Hawk. c. 12. s. 1.
Also every private person is bound to assist any officer demanding his help for the
taking of a felon, or the suppression of an affr^iy, id. s. 12, and may be indicted if he
refuses without lawful excuse. Reg. v. Brown, 1 C. S^ Mar. 314.
And it is the duty of all private persons to arrest without warrant any person detected
in the attempt to commit a felony. R. v. Hunt, R. 8^ M. C C. 93; R. v. Howarth, R. Sf
M. C C. 207. And though the otfender run away, and give over his intention of com-
mitting the felony, still it seems, on firesh pursuit, he may be apprehended by any one.
R. V. Howarth, R. 4f M. G. C. 207.
If a felony has been actually committed by some one, a private person may arrest, or
direct a peace officer to arrest a party whom he has reasonable grounds for suspecting to
have been guilty of it, though in fact such party be really innocent; but he is not abso-
lutely bound to do so, like a peace officer; and he does so at his peril, for if these grounds
for suspecting the party be not reasonable, or there has been no felony committed, the
person arresting is guilty of a false imprisonment, and liable accordingly. Pauton v.
Williams, 1 G. <.y D. 504. 2 Ad. Sf E. {N. S.) 69; Allen v. Wright, 8 C. ^ P. .522.
A bare surmise, however, is plainly insufficient. Davis v. Russel, 5 Bing. 364. 2 M,
Sf P. 590, S. C. 4 Inst. 144.
See Vol. 2d, chapter 10.
CHAPTER XXXVI.
TOUCHING MURDER, WHAT IT IS, AND THE KINDS THEREOF.
Murder and manslaughter differ not in the kind or nature of the
offense, but only in the degree, the former being the killing of a man
of malice prepense,[2] the latter upon a sudden provocation and fall-
ing out.[l]
[1] For manslaughter, see chapter' XXXVIII. p. 466.
[2] The best explanation of the legal meaning of malice, is that of Justice Foster. Its
brevity, accuracy and felicity of language have recommended it and caused its almost
universal recognition as well in America as in England, particularly the closing clause,
in which an act is declared to be malicious, which shows " a heart regardless of social
duty and fatally bent on mischief" When (says Foster) the law maketh use of the term
molice aforethought, as descriptive of the crime of murder, it is not to be understood in
that narrow restrained sense, to which the modern use of the word malice is apt to lead
one, a principle of malcvoltnce to particulars ; for the law by the term malice in this in-
stance rneancth, that the fact hath been attended with sucli circumstances as are the
ordinary symptoms of a wicked, depraved, malignant spirit.
In the case of an appeal of death, which was anciently the ordinary method of prose-
cution, the term malice is not made use of as descriptive of the offence of murder, in
contradistinction to simple felonious homicide. The precedents charge, that the fact wits
done nequitir <^- in felouid, which fully takclli in tiie legal sense of the word malice. The
words per malitiam and malitiosc our oldest writers do indeed frequently use in some
other cases; and tliey constantly mean an action flowing from a wicked and corrupt
motive, a tiling done malo animo, mala conscientid, as they express themselves. Of which
many instances might be given. I will mention one or two.
Tlie method of proceeding in ancient times in a case of robbery or larceny, when the
stolen goods were found upon tlic defendant, was, that if he alleged that he bought them
of another, whom he named and vouched to warranty, the voucher, if he appearedand
entered into warranty was to stand in tiie place of the defendant pro bono Sf malo. The
HISTORIA PLACITORUM CORONiE. 449
And therefore it is, that upon an indictment of murder the party
offending may be acquitted of murder, and yet found guilty of man-
legislature hath likewise frequently used the terms malice and malicioushj in the same gene-
ral sense, as denoting a wicked, perverse, and incorrigible disposition." Foster refers to the
statutes 28 Ed. 1. st. '2. 4 Sf 5 W. S( M. c. 4. and continues: " In the same latitude are the
words malice aforethought to be understood in the statutes which oust clergy in the ease
of wilful murder. The malus animus, which is to be collected from all the circumstances
is what bringeth tlie offence within the denomination of wilful malicious murder, what-
ever might be the immediate motive to it; wlicther it be done as the old writers express
themselves, ' Iiu vtl odio, v^l causa lucii,' or from any other wicked or mischievous in-
centive. And most if not ail the cases, which in the hooks are ranged under the head of
implied malice, will if carefully adverted to, be found to turn upon this single point, that
the fact hath been attended with such circumstances as carry in them the plain indica-
tions of an heart regardless of social duty and fatally bent upon mischief." Foster, 256, 257.
An act " flowing from a wicked heart, a mind grievously depraved, and acting from mo-
lives highly criminal, is the genuine notion of malice in our law." Curtis'' ease. Foster, 138.
Lord Hult says upon this subject, " some have been led into mistakes by not -well con-
sidering what the passion of malice is; tboy have construed it to be a rancour of mind
lodged in the person killing for some considerable time before the commission of the fact;
which is a mistake, arising from a not well distinguishing between hatred and malice.
Envy, hatred and malice, are three distinct passions of the mind." Kel. 127. Amongst
the Romans, and in the civil law, malitia appears to have imported a mixture of fraud,
and of that which is opposite to simplicity and honesty. Cicero speaks of it De Nat.
Deor. Lib. 3. s. 30. as " ver.suta et falleax nocendi ratio;" and in other work De Ojjic.
Lib. 3. s. 18. he says, " mihi quidem etiam vertp hsereditatcs non honestte videntur si
sint malitiosis, (i. e. according to Pearce, a malo animo profe'ctis,) blanditiis officiorum ; non
veritate sed simnlatione qucesitcB." And see Dig. Lib. 2. Tit. 13. Lex 8. where, in
speaking of a banker or cashier giving his accounts, it is said, " Ubi exigitur argentarius
rationes edere, tunc punitur cum dolo malo non exhibet. * * * Dolo malo autem non
edit, et qui maliliose edidit, et qui in totum non edit." "Amongst us malice is a term of
law importing directly wickedness, and excluding a just cause or excuse." 1 Russell on
Cri tries, 483.
Lord Coke, in his comment on the words per 7nalitia7n, says, " if one be appealed of
murder, and it is found by verdict that he killed the party se defendendo, this shall not
be said to be per malitiam, because he had a just cause." 2 Inst. 384. And where the
statutes speak of a prisoner on his arraignment standing mute of malice, the word clearly
cannot be understood in its common acceptation of anger or desire of revenge against
another. Thus, where the 25 Hen. VIIL c. 3. says, that persons arraigned of petit trea-
son, cSfc. standing " mute of malice or froward mind," or challenging tSj-c, shall be ex-
eluded from clergy, the word malice, explained by the accompanying words, seems to
signify a wickedness or frowardness of mind in refusing to submit to the course of jus-
tice; in opposition to cases where some just cause may be assigned for the silence, as
that it proceeds from madness, or some other disability or distemper. And in the statute
21 Edw. 1. De malefactoribns in parcis, trespassers are mentioned who shall not yield
themselves to the foresters, dfc. but " immo malitiam suam prosequendo et continuando,"
shall fly or stand upon their defence. And where the question of malice has arisen in
cases of homicide, the matter for consideration has been whetlicr the act were done with
or without just cause or excuse; so that it has been suggested that what is usually called
malice, implied by the law, would perhaps be expressed more intelligibly and familiarly to
the understanding if it were called malice in a legal sense. Malice, " in its legal sense,
denotes a wrongful act done intentionally without just cause or excuse." I'er Little-
dale, J., McPherson v. Daniels, 10 B. i^ C. 272. " We must settle what is meant by the
term malice. The legal import of this term differs from its acceptation in common con-
versation. It is not, as in ordinary speech, only an expression of hatred and ill will to an
individual, but means any wicked or mischievous intention of the mind. Thus in the
crime of murder, which is always stated in the indictment to be committed with malice
aforethought, it is neither necessary in support of such indictment to show that the pri-
soner had any enmity to the deceased, nor would proof of absence of ill will furnish the
accused with any dol'cnoe, when it is proved that the act of killing was intentional, and
done without any justifiable cause." Per Best, J., Rex v. Harvey, 2 B. S( C. 268. 1 Russ.
on Crimes, 483. note i. See 4 Bl. Com. 199. 1 East. P. C. 215. 1 Haivk. P. C. c. 29. s. 12.
449 HISTORIA PLACITORUM CORONA.
slaughter, as daily experience witnesseth,(fl) and they may not find
him generally not guilly, if guilty of manslaughter.[3]
In an appeal of murder it is agreed on all hands, that the jury may
find him not guilty of the murder, and guilty of manslaughter; this
was accordingly ruled(i6) P. 34 Eliz. B. R. the case of Wroth and
Wig,s;es,{c) P. 5 Jac. B. R. n. 20. Pellet and Barendon, P. 7. Jac.
B. R. n. 11. ;(^) hut it hath been held, that altho upon an indictment
of murder, if the party appear to be guilty of manslaughter, the jury
ought not to acquit him generally, but' find him guilty of manslaugh-
ter; yet in an appeal of murder, tho the jury may, if they please, find
him guilty of manslaughter, if the fact be such, yet they
[[450 ] may find generally, that he is not g^dlty, because it is the
suit of the party, and he should lay his case according to the
truth.
With this agrees H. 38 Eliz. B. R. Penryn and Corbett,{e) H.
38 Eliz. B. R. B. 183. (/) M. 22 Jac. B. R. L. 278. Blount's
case,(o-) but it was held P. 2. Car. 1. in Bassage's case, (A) that
they may not in such a case find a general verdict of jiol guilty, but
must find him guilty of manslaughter, because included in murder,
as well in case of an appeal, as in case of an indictment, and so it
seems the law is.
The difference betwe'en the offenses of murder and manslaughter
seems to rest in these particulars.
1. In the degree and quality of the offense, for murder, as hath
been said, is accompanied wiih malice forethought, either express
or presumed; but bare homicide is upon a sudden provocation or
falling out.
2. A lid therefore in murder there may be accessaries before, as
well as after, because ordinarily it is an act of deliberation, and not
merely of sudden passion; but in bare homicide or manslaughter
there can be no accessaries before, tho there may be accessaries
after, and therefore, if an indictment be of murder against ,/2. and
that 5. and" C were counselling and abetting as accessaries before
only, (and not as present, aiding and abetting, for such are princi-
pals, as hath been said) if ^5. be found guilty only of homicide, and
acquit of the murder, the accessaries before are hereby discharged. (4)
(a) See Dalison 14. (ft) Or ratlier taken for granted.
(c) Cro. Eliz. 276. See also Cro. Eliz. 296. 1 Sid. 325.
{d) These two cases I do not find any wiiere among the printed reports.
(e) Cm. Eliz. 464.
(/) I suppose this may be the case of Gojf and Byhij, Cro. Eliz. 540.
(g) 2 Roll. Rep. 460. (/t) Latch. 126.
Rex V. Grcenricre,S Car. Sf P. 35. Rrx v. Walters, 1 Car. ^- M. 164. Reg. v. Kirkham,
8 Car. ^ P. 115. 7?^ir. v. Marryntt, 8 Car. c^ P. 425. Rex v. Self, 1 Lench, 137.
Rex V. Bailey, R. &; R. ('. C. 1. Commonweallk v. Drew, 4 Mass. 391. Respublica v.
Mulatto Boh, 4 Dallas, 146. Pennsylvania v. Lewis Addison, 282. Commonweulth v.
Green, I As/imcad, 289. Coffee v. 'J'/te Slate, 3 Yerjrer, 283. and post in this ciiapter and
chapter 37.
[3] Tills is unchanged cither in England or the United Stales.
[4J Those who arc charged only as accessaries before the fact, when the principal is
HISTORIA PLACITORUxM CORONA. 450
3. The indictment of murder essentially requires these words, /e/o-
nich ex malitid sua prsecogitatd interfecit 8^- ninrdravit, but the
indictment of simple homicide is ouXy felon ice interfecit.
4. Altho at common law, and by tlie statute of 25 E. 3. cap. 4.
clergy was promiscuously allowed, as well in case of murder, as of
homicide and manslaughter, yet by the statute of 23 H. 8. cap. 1.
25 H. 8. cap. 3. 1 £. 6. cap. 12. 5 (§• 6. E. 6. cap. 10. clergy is taken
away from murder ex malitid prxcogitald.[^5'\
Now having before, cap. 33. declared those things, that
are common to the oftenses of murder and manslaughter, it f 45L ]
remains, that I consider those things, that are specificial and
peculiar to murder, which is what shall be said a killing ex malitid
pi'secogifatd, or what in law is said such a malice, as makes tlie
offense of killing a person thereby to be murder.
Such a malice tlierefore, that makes the killing of a man to be
murder, is of two kinds, 1. Malice in fact, or 2. Malice in law, or
ex prscsximptione legifs.
]\lalice in fact is a deliberate intention of doing some corporal harm
to the person of another.
Malice in law, or presumed malice, is of several kinds, viz. 1. In
respect of the manner of the homicide, when without provocation.
2. In respect of the person V\\^,viz. a minister of justice in execution
of his office. 3. In respect of the person killing.
Touching the first of these in this chapter, viz. malice in fact.
Malice in fact is a deliberate intention of doing any bodily harm to
another, whereunto by law lie is not authorized.
The evidences of such a malice must arise from external circum-
stances discovering that inward intention, as lying in wait, menacings
antecedent, former grudges, deliberate compassings, and the like,
which are various according to variety of circumstances.
It must be a compassing or designing to do some bodily harm. [6]
found guilty of manslaughter, cannot be punished, because that necessarily supposes the
fact to have happened on a sudden, for if it had been done on premeditation, it would
have been murder. 4 Coke, 43, 44. Moore, 461. Da!t. c. 108.
Hawkins suggests that under the law of principal and accessary as it stood before the
statute 1 Anne, c. 9. they who are charged as accessaries after the fact should be dis-
charged at common law when the principal is found guilty of manslaughter, and admit-
ted to the benefit of clergy, because in such case it could not appear by any" judgment
that there was a princioal. 2 Hawk. c. 29. s. 24. 3 Inst. 25. Co, Eliz. 540. Fos-
ter, 3G3. ^
But see Rex v. Greenacre, 8 C.Sf P. 35. where it was ruled that an accessary after the
fact was liable.
[5] For the English statutes, since Hale's time, see note at the end of this chapter, 454, d.
[6] It has been suggested that the distinction between express malice (malice in
fact) and implied malice (malice in law,) is not of practical importance. It is not,
perhaps, in a tnere classification of crime with reference to punishment, but as an aid
to the ascertainment of guilt, its antiquity and frequent observation show its value.
When the act alleged is one from which the law presumes malice, the examination of
a jury may be confined to the sirvgle question of whether or not the act was committed,
in order to arrive at a conclusion of the guilt or innocence of the accused. It is
true that the classification of murder in most of the Untied States into murder of the
first and second degrees, usually renders it necessary fur the jury in their deliberations,
451 HISTORIA PLACITORUM CORONA.
If there have been a long suit in law between A. and B. either
touching interest or wrong done, as if A. sue B. or threaten to sue
him, this alone is not a sufficient evidence of mahce prepense, tho
possibly they meet and fall out, and fight, and one kills the other, if
after havin» ascertained that the party is gruilty of murder, to pursue the investigation so
as to deteruiine to which degree the killing belongs, and on this point the question of
intention, which is the great test, often involves substantially the points connected with
the malice in fact of the text. The value of the distinction, as applied to murder gene-
rally or manslaughter, remains notwithstanding.
Hawkins says that express malice exists in such murder as is occasioned through an
express purpose to do some personal injury to him who is slain in particular. As to
murder in this sense, sucii acts as show a direct and deliberate intent to kill another, as
poisoning, stabbing, and such like, are clearly murder. 1 Hawk. P. C. 31. s. 19.
Implied malice is where there is such killing as happens in the execution of an unlaw-
ful action, principally intended for some other purpose, and not to do a personal injury to
him in particular wlio is slain, in which case the malice seems to be most properly said to
be implied. The cases which have borne dispute have generally happened in the following
instai^ces: First, in duelling. Secondly, in killing another without any provocation, or
but upon a slight one. Thirdly, in killing one whom the person killing intended to hurt
in a less degree. 1 Hawk. c. 'A\. s. 20.
Blackstone, who quotes Hale in the first sentence, and follows him and Hawkins, says
of the distinction between express and implied malice: " Express malice is when one,
with a sedate, deliberate mind and formed design, doth kill another: which formed
design is evidenced by external circumstances discovering that inward intention ; as ly-
ing in wait, antecedent menaces, former grudges, and concerted schemes to do him some
bodily harm. Tjiis takes in the case of deliberate duelling, where both parties meet
avowedly with an intent to murder. Also, if even upon a sudden provocation one beats
another in a cruel and unusual manner, so that he dies, though he did not intend his
death, yet he is guilty of murder by express malice; that is, by an express evil design,
the genuine sense of malitia. As when a park-keeper tied a boy, that was stealing
wood, to a horse's tail, and dragged him along the park; when a master corrected his'
servant with an iron bar; and a schoolmaster stamped on liis scholar's belly; so that
each of the sufferers died; these were justly held to be murders, because the correction
being excessive, and such as could not proceed but from a bad heart, it was equivalent
to a deliberate act of slaughter. Neither shall he be guilty of a less crime, who kills
another in consequence of such a wilful act, as shows him to be an enemy to all man-
kind in general; as going deliberately, and with an intent to do mischief, upon a horse
used to strike, or coolly discharging a gun among a multitude of people. So if a man
resolves to kill the next man he meets, and docs kill him, it is murder, although he knew
him not; for this is universal malice. And, if two or more come together to do an un-
lawful act against the king's peace, of which the probable consequence migiit be blood-
shed, as to beat a man, tq conmiit a riot, or to rob a park: and one of them kills a man,
it is murder in them all, because of the unlawful act; the malitia prcacogilata, or evil
intended beforehand." 4 lU. Com, 19!). • , .
And of implied malice, he adds: " In many cases where no malice is expressed, the
law will imjjly it: as where a man wilfully poisons another, in such a deliberate act the
law presumes malice, though no particular cnmil}' can be [)r(Wed. And if a man kills
another suddenly, without any, or without a considerable provocation, the law implies
malice, for no person, unless of an abandoned hi^art, would be guilty of such an act,
upon a slight or no apj)arent cause. No affront, by words or gestures only, is a sufh-
cicnt provocation, so as to excuse or extenuate such acts of violence as manifestly en-
danger the life of another. But if tiie person so provoked had unfortunately killed the
other, by beating him in such a manner as showed only an intent to chastise and not to
kill him, tlic law so far considers the provocation of contumelious behaviour, as to
adjudge it only manslaughter, and not murder. In like manner if one kills an officer
of justice;, either civil or criminal, in tiie execution of his duly, or any of his assistants
endeavouring to conserve the peace, or any private person endeavouring to suppress an
pffray or apprehend a felon, knowing his authority or the intention with which he
interposes, the law will imply malice, and the killer shall be guilty of murder. And if
HISTORIA PLACITORUM CORON^E. 451
it happen upon sudden provocation ; but this may by circumstances
be lieightened info a malice prepense, as if .^. without any new pro-
vocation strike B. U[)on the account of that difference in law, where-
of B. dies, or t convcrso, or if he lie in wait to kill him, or come
one intends to do another felony, and undesig-nedly kills a man, this is also murder.
Thus if one shoots at A. and misses him, but kills B. this is murder; because of the
previous felonious intent, which the law transfers from one to the other. The same is
the case where one lays poison for A. and B. against whom the prisoner had no mali-
cious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a
woman with child a medicine to procure abortion, and it operates so violently as to kill
the woman, this is murder in the person who gave it." 4 HI. Com. 200.
Roscoe, Cr. Ev. 579 ; Archbold, Cr. PL 3d8; and Russell, 1 C. S( M. 482, follow, and
quote Hale and Hawkins.
The collections of cases do not always accurately indicate the distinctions between
the two sorts of malice, less, perhaps, in Hale's Pleas of the Croicn, than in the more
modern works; so that many of the cases which might be introduced in the notes under
the head of malice in fact, will be found in the next chapter, being there put the more
fully to illustrate the text.
Whenever malice is shown to exist, the offence is murder, though there may have
been intervening provocation. If one seek another, and enter into a fight with him,
with the pur|)osc, under the pretence of fighting, to stab him; if a^omicide ensue, it will
be clearly murder in the assailant, no matter what provocation was apparently then
given, or how high the assailant's passion rose during the combat, for the malice is ex-
press. Slate v. Ferguson, 2 Hill, 619. Slate v. Lane, 4 Iredell, 113, (N. C'irolina.)
So if ^., from previous angry feelings, on meeting with B. strike him with a whip, with
the view of inducing B. to draw a pistol, or believing he will do so in resentment of the
insult, and determines, if he do so, to shoot B. as soon as he draws, and B. does draw,
and A. immediately shoots and kills B., this is murder. State v. Martin, 2 Iredell. 101.
Blows previously received will not extenuate homicide- upon deliberate malice and
revenge; especially where it is to be collected from the circumstances that the pro-
vocation was sougiit for the purpose of colouring the revenge. Rex v. Mason, 1 East,
P. C. 239.
If a party, under colour of fighting upon equal terms, uses from the beginning of the
contest a deadly weapon, without the knowledge of the other party, whom he kills with
such weapon; or if at the beginning of tlic contest he prepares a deadly weapon, so as to
have the power of using it in some part of the contest, and accordingly does so, and kills
the other party ; the killing in both these cases will be murder. Rex v. Whiteley,
1 Lewin, C. C. 173.
If a person, being in possession of a deadly weapon, enter into a contest with another,
intending at the time to avail himself of it, and in the course of the contest actually use
it, and kill the other, it will be murder ; but if he did not intend to use it when he began
the contest, but used it in the heat of passion, in consequence of an attack made upon
him, it will be manslaughter. If he use it to protect his own life, or to protect himself
from such serious bodily harm as would give him a reasonable apprehension that his life
was in immediate danger, having no other means of defence, and no means of escape,
and retreating as far as he can, it will be justifiable homicide. Reg v. Smith, 8 Car. Sc
P. 160.
If A. had formed a deliberate design to kill B., and afler this they meet and have a
quarrel, and many blows pass, and A. kill B., this will be murder, if the jury are of opi-
hion that the death was in consequence of previous malice, and not of the sudden provo-
cation. Reg v. Kirkham, 8 Car. S^- P. 115.
Although a person may not go in search of, or lie in wait for another, whom he kills,
yet, if he has formed the purpose to kill him, and within a short time afler forming and
avowing such purpose, he duly armed, meets the other, by chance, whether in public or
in secret, and slays him immediately, there is a presumption that he did it on the pre-
vious purpose and grudge, if there be no evidence of a change of purpose. State v. Tilly^
3 Iredell, 424.
When a deliberate purpose to kill, or to do great bodily harm, is ascertained, and there
is a consequent unlawful act of killing, the provocation, whatever it may be, which im-
451 HISTORIA PLACITORUM CORONA.
with a resolution to strike or kill him, for in such a ease the differ-
ence in the law-suit, (which alone makes not mahce) is coupled and
joined with circumstances, that prove the purpose of the
[452 ] party was more, than the law allows in a legal vindication
of wrong done.
mediately precedes the act, is to be thrown out of the case and goes for nothing, unless
it can be shown, that this purpose was abandoned, before the act was done. Slate v.
Johnson, 1 Iredell, 354.
If, upon a provocation received, one party deliberately and advisedly denounce ven-
geance against the other, as by declaring that he will have his blood, or by preparing for
the conflict, or the like, and afterwards carry his design into execution, he will be guilty
of murder, although the death happened so recently after the provocation, as that the
law might, apart from such evidence of express malice, have imputed the act to unad-
vised passion. 1 Vent. 159. Onely's case, 2 Ld. Raymond, 190.
Thus, where two persons quarrel, and one throws a brick-bat at the other, who has
privately armed himself with a deadly weapon, and keeps it concealed, in expectation of
the affray, and, on such an assault being made upon him, immediately draws forth the
weapon, and, with it, kills the assailant, though then retreating; it was held, that a ver-
diet of murder would not be disturbed, though there was no proof of previous malice,
malice being implied from tlie res gestcB, and from the preparation of the defendant.
Slaughter v. The Conffuonwealth, 1 Leigh, 681.
And where two parties had previously had words, and a general challenge to fight
passed, and, three hours afterwards, the defendant, belonging to one of them, renewed
the challenge, which was accepted, and a fight ensued, which resulted in the death of
one of the other party, it was held murder. Commonwealth v. Crane, General Court of
Virginia, Nov. 1791. 2 Wheeler'' s cases, 587.
Where it appeared that the deceased had threatened the prisoner, about three weeks
before, that he would kill him, that they met in the street, on a star-light night, when
they could see each other, that the deceased pressed for a fight, but the prisoner retreated
a short distance, that when the deceased overtook him the prisoner stabbed him with
some sharp instrument which caused his death, and that, at the time of this meeting, the
deceased had no deadly weapon, it was held, that the offence was murder. State \. Scott,
4 Iredell, 409. , ._
Where the deceased, after being married for some years, left the country; and his
wife, not hearing from him for two years, marrieu the defendant, though not under cir-
cumstances which would make the second marriage legal under the Pennsylvania
statute, and the deceased returned, after a lapse of a year from the second marriage,
and found his wife living with the defendant, upon which a quarrel arose, which was
partially composed, but wliicli ended in the defendant deliberately shooting the deceased
at his own house; it was held murder in the first degree. Commonwealth v. Smith,
7 Sniith''s Pa. Laws, Appendix, 2 Whfieler''s cases, 80.
Where, however, fresh provocation occurs between pre-conccived malice and death, it
ought clearly to appear that the killing was upon the antecedent malice; which may be
difficult, in some cases, to show satisfactorily, if the new provocation be a grievous one.
In such cases, it should not be presumed that they fought on the old grudge, unless it
appear by the whole circumstances of the fact. But, with respect to poisoning, that
necessarily im|ilics malice, however great the provocation may have been, because it is
a deliberate act, though no other proof of malice exists. 1 Hank. c. 31. s. 30. 3 Inst.
48. 4 Bl. Com. 193-200. F«.s/cr, (J8. Commonwealth v. Norton, 3 Boston Law Re.
porter, 241. Commonwr.nllh v. Kinney, ihid. 405.
By the common law, independent of all local legislation, it is not only murder for one
man to kill another in a duel, but his second, also, is guilty of murder: and the better
opinion is that this extends even to the second of him who was killed, because the death
iiaj>pcned u[>on a compact in which all were engaged. See ante, 443, and post, 453.
'i'o make a man principal in a murder, it is not necessary that he should inflict the
mortal wound. It is sufficient if he be present, aiding and abetting the act. Nor is it
nccesMary that there should be a particular malice against the deceased. It is sufficient
if there lie drlihcrate malignity and depravity in the conduct of the party. U. Slates v.
Ross, 1 Gallison. C. V. R. 524.
HISTORIA PLACITORUM CORONA. 452
If there be an old quarrel betwixt Ji. and B. and they are recon-
ciled again, and then upon a new and sudden falling out A. kills B.
this is not murder, but if upon circumstances it appears, that the
reconciliation was but pretended or counterfeit, and that the hurt
done was upon the score of the old malice, then it is murder.
Malice may be exerted against a party in his absence ; as where A. lays poison for B.
in liis victuals, which B. afterwards takes and dies. So, where A. procures an idiot or
lunatic to kill B., whicli he does. In both instances A. is guilty of the murder as prin-
cipal, and B. is merely an instrument. Fauar's case, 4 Coke^ 446. Rex v. Giles,
1 Moodij, C. C. 166. Hawkins, c.l.s.2. ^
Most of the above cases on the subject of express malice are collected in Wharton^s
Am. Cr.L.p.22't-9.
If two persons fight, and one overpower the other, and knock hfm down, and put a
rope round his neck and strangle him, this will be murder. Rex v. Shaw, 6 Car.
4" p. 372.
If persons cover another with straw and set fire to it, intending to do him a serious
injury, and he die, it is murder, though they did not intend to kill him. But if they
intended to act in sport, and merely to frighten him, it is manslaughter. Eriingtori's
case, 2 Lewin, C. C. 217.
Semble, that where guns are fired by one vessel at another vessel, and those on board
her generally, those guns are to be considered as shot at each individual on board her.
Rex v. Bailey, R. Sf R. C. C. 1. 1 Russ. C. Sf M. 109.
If a person being attacked should, from an apprehension of immediate violence — an
apprehension which must be well grounded and justified by the circumstances — throw
himself for escape into a river, and be drowned, the person attacking him is guilty of
murder. Reg. v. Pitts, 1 Car. Sf M. 284.
If a master, by premeditated negligence, or harsh usage, cause the death of his ap-
prentice, it is murder. Rex v. Self, 1 Leach, C. C. 137; 1 East, P. C. 226.
It is murder to cause the death of an infant of tender years, unable to provide food for
and take care of itself, by not providing sufficient food and nourishment, whether such
infant be child, apprentice or servant, whom the party is obliged by duty or contract to
provide for. Rex v. Squires, 1 Russ. C. Sf M. 426.
Where a person in loco parentis, inflicts corporal punishment on a child, and compels
it to work for an unreasonable number of hours, and beyond its strength, and the child
dies, the deatii being of consumption, but hastened by the ill-treatment, it will not be
murder, but only manslaughter in the person inflicting the punishment, although it was
cruel and excessive, and accompanied by violent and threatening language, if such per-
son believed that the child was shamming illness, and was really able to do the quantity
of work required. Rex v. Cheeseman, 7 Car. Sf P. 454.
On an indictment for the murder of an aged and infirm woman, by confining Ijer'
against her will, and not providing her with meat, drink, clothing, firing, medicines, and
other necessaries, and not allowing her the enjoyment of the open air, in breach of an
alleged duty; if the jury think that the prisoner was guilty of wilful neglect, so gross
and wilful that they are satisfied he must have contemplated her death, he will be guilty
of murder; but if they only think that he was so careless that her death was occa-
sioned by his negligence, though he did not contemplate it, he will be guilty of man-
slaughter. Reg. v. Marriott, 8 Car. Sf P. 425.
If a woman left her child, a young infant, at a gentleman's door, or other place where
it was likely to be found and taken care of, and tiie child died, it would be manslaughter
only; but if the cliild were left in a remote place, where it was not likely to be found,
e.g. on a barren heath, and the death of the child ensued, it would be murder, lb.
If a person do an act towards another wlio is helpless, which must necessarily lead to
the death of tiiat other, the crime amounts to murder; but if the circumstances are
such that the person could not have been aware that the result would be death, that
would reduce the crime to manslaughter, provided that the death was occasioned by an
unlawful act, but not such an act as showed a malicious mind. Reg- v. Walters,
1 Car. Sf M. 1 64.
"Malice is express" (says Chief Justice Parsons, Selfridire's Trial, p. 5.) "where there
was a premeditated intention to kill. Malice is implied when tiie killing is attended
452 HISTORIA PLACITORUM CORONA.
«
If there be malice by Ji. against B. and by B. against A. and
they meet, and upon the account of that malice A. strii^es B. and B.
thereupon kills Ji. (otherwise than in his own necessary defense) it
is murder in B. but if they meet accidently, and Ji. assaults B. first,
and B. merely in his own defense, witliout any other malicious
design kills Ji. this is not murder in B. for it was not upon the ac-
count of the former malice, but upon a new and siidden emergency
for the safe-guard of his life; but if ,/?. and B. had met deliberately
lo fight, and A. strikes B. and pursues B. so closely, that B. in safe-
guard of his own life kills A. this is murder in B. because their
meeting was a compact, and an act of deliberation, and therefore
all, that follows thereupon, is presumed to be done in pursuance
thereof, and thus is Mr. Ballon, cap. 93. p. 241. (e) to be under-
stood.
But yet qusere, whether if B. had really and truly declined the
fight, ran away as far as he could, (suppose it half a mile,) ofFerd to
(i) New Edit, cap. 145. p. 471.
with circumstances which indicate great wickedness and depravity of disposition, a
heart void of social duty and fatally bent on mischief." " Malice is implied," says
Mr. East^ " from any deliberate act. however sudden." And he adds, (225.) " He who
wilfully and deliberately does any act which apparently endangers another's life, and
thereby occasions his death shall, unless he clearly prove the contrary, be adjudged to
kill him of malice prepense." " Malice," says Judge Addison, quoted and approved
by Judge Rush, (trial of Richard Smith, in Philadelphia, for murder of John Carson,
May, 1816, p. 83.) "is a deliberate, wicked, vindictive temper, regardless of social
duty, and bent on miscliief. When a wilful killing is proved, the law presumes malice,
unless the killer prove the contrary," {page 84.) Deliberate killing witliout passion,
whatever may have been the provocation, is murder. In pape 231 it is said, the law
does not fix the time of such deliberation. " If the defendant has time to think," said
Judge Rush, in that trial, {pa<re 231.) " and did intend to kill for a minute, as well as
for an hour or a day, it is a deliberate, premeditated killing, constituting murder. To
deliberate is to reflect with a view to make a choice, and a reflection but for a minute
is a sufficient deliberation. No time is too short for a wicked man to frame in his
mind a scheme of murder, and to contrive the means of accomplishing it."
If a man, says Chief Justice Parker, in Philips^ Trial, 45, kills another suddenly with
slight or no provocation, the law implies malice.
Foster says, (Crown Law, 380,) malice is implied where an officer is killed in the law-
ful discharge of his duty. Lord //aZe expresses it rather more strongly: "To kill an
officer in the faithful discharge of his duty, is murder, and the law will imply the highest
dvgree of malice," post, 465.
Malice may also be inferred from the instrument used, the mode in which the weapon
was obtained and selected, especially if it was the best choice for the purpose; the
manner, too, in which the wea|)on was used, the repetition of dangerous wounds, the
choice of vital spots for those wounds, and the perseverance in the assault until death
be produced ; these are all circumstances indicative of malice. Deliberate malice may
also be seen in the mode of attack, the time selected for it when the victim is off hfs
guard, when he has no o]>portunity for self defence, when stabs are given from behind)
pursuing a man, selecting him from among others, advancing on him in a studied, cir-
cuitous manner which could not be perceived, intercepted, or prevented, also show calcu-
lation, deliberation, and malice.
Finally, ifthere was cause, real or imaginary, for. resentment ; if the purpose of killing
was long harboured; if no motive but revenge can be assigned for the fatal deed; if re-
venge was harboured, and if previous threats have been made, these facts would be evi-
dcnee of express malice.
HISTORIA PLACITORUM CORONA. 452
yield, and yet A. refusing to decline it had attempted his death, and
B. after all this kills A. in his own defence, whether it excuseth him
from murder; but if the running away were only a pretense to save
his own life, but was really designed to draw out A. to kill him, it
were murder. [7]
Ji. commands B. to kill C. and before the act done repents, and
countermands B. and charges him not to do it, yet B. doth it, Ji. is
not guilty. Coke P. C. p. 51.
A. challenges C. to meet in the field to fight, C declines it as
much as he can, but is threatened by A. to be posted for a coward,
4-c. if he meet not, and thereupon A. and B. his second,
and C. and D. his second, meet and fight, and C. kills A. [453]
this is murder in C. and D. his second, and so ruled in P.
14 Jac. in 2\ivernerh case,(A^) tho C. unwillingly accepted the chal-
lenge.[S]
But if it seems not to be murder in B. because tho he had malice
against C. and D. his opponents, yet he had none against ./?. tho
some have thought it to be murder also in B. because done by com-
pact and agreement. 22 Eliz. 3. 262. sed quaere de Aoc.[9]
If A. challenge B. to fight, B. declines the challenge, but lets A.
know, that he will not be beaten, but will defend himself; if B.
going about his occasions wears his sword, is assaulted by A. and
kild, this is murder in A. but if B. had kild A. upon that assault, it
(it) 1 Rol. Rep. 360. 3 Bui. 171.
[7] This quere of lord Hale is discussed by Mr. East, and it is observed that Black-
atone (4 Bl. Com. 185,) expressly puts the same case of a duel as Hale, but does not
subjoin the same doubt; and that it was considered as settled law by tlie Cliief Justice
in Onely^s case, {Ld. Raymond, 1489.) Mr. East, after reasoning in extenuation of the
crime of one so declining to tight, proceeds thus : "Yet still it may be doubtful, whether,
admitting the full force of this reasoning, the offence can be less than manslaughter, or
whether in such case the party can altogether excuse himself upon tlie foot of necessity
in self-defence, because the necessity which was induced from his own faulty and illegal
act, namely, the agreement to fight, was in the first instance deliberately foreseen and
resolved upon, in defiance of the law." 1 East, P. C. c. 5. s. 54. p. 284.
[8] Upon this principle, deliberate duelling if death ensuelh, is in the eye of the law
murder; for duels are generally founded in deep revenge; and though a person should
be drawn into a duel, not upon a motive so criminal, but merely upon the punctilio of
what the swordsmen falsely call honour, that will not excuse; for he that deliberately
seeketh the blood of another upon a private quarrel, actetli in defiance of all laws,
human and divine, whatever his motive may be. Foster, 297. 1 Hawk.c. 31. s. 21, 22-
29. 4 Bl. Com. 191. 3 Inst. 51. Lord Morlei/s case, 7 St. Tr. 421.
Both principals and seconds are liable for murder if either of the parties are killed,
all being engaged in an unlawful act, having for its direct object the taking of life.
The old view, that the second of the killed is not liable, is now not law, if it ever was.
Rrg. V. Young. 8 Car. &; P. 644. See also Smith v. The State, 1 Yerger, 228. Rex v.
Rice, 3 East, 581. Rex v. Murphy, 6 C. Sf P. 103. 1 Rol. Rep. 360. ante, 443.
If, however, the comhat is not deliberate, but the immediate consequence of sudden
quarrel, it does not fall within this doctrine, and must be judged of by the circum-
stances attending the particular case. Foster, 295. 1 East, P. C. 242.
[9] The later cases consider all present, aiding and abetting, alike guilty of murder,
and do not recognise the distinction made in the text. See ante, p. 443, and p. 453,
note.
VOL. I.— 39
453 HISTORIA PLACITORUM CORONA.
had been se defendetido, if he could not otherwise escape, or bare
homicide, if he could escape, and did not.
But if B. had only made this as a disguise to secure himself from
the danger of the law, and purposely went to the place, where pro-
bably he might meet ./?. and there they fight, and he kills »/?. then it
had been murder in B. but herein circumstances of the fact must
guide the jury.
If ./?. and B. fall suddenly, out, and they presently agree to fight
in the field, and run and fetch their weapons, and go into the field
and fight, and ./?. kills B. this is not murder but homicide, for it is
but a continuance of the sudden falling out, and the blood was
never cooled ; but if there were deliberation, as that they meet the
next day, nay, tho it were the same day, if there were such a com-
petent distance of time, that in common presumption they had time
of deliberation, then it is murder. Co. P. C. p. 51. Jac. B. R. Ferrer^s
case, Al. 8 Jac. B. R. Morgan'' s case. [10]
A. the son of B. and C. the son of D. fall out in the field and
fight, A. is beaten, and runs home to his father all bloody, B. pre-
sently takes a staff, runs into the field, being three-quarters of a
mile distant, and strikes C that he dies, this is not murder in B.
because done in sudden heat and passion. T. 9 Jac. B. R, 12 Co.
Rep. p. 87.(/)[ll]
(Z) Cro. Jac. 296. Royleifs case.
[10] Foster, 296. Rex v. Lynch, 5 C. 4" P. 324. Reg. v. Kiikham, 8 C. Sf P. 115.
[11] In every case of homicide upoa provocation, how great soever it be, it' there is suffi-
cient time for passion to subside, and for reason to interpose, sucii homicide will be mur-
der. A. findelh a man in the act of adultery with his wife, and in the first transport of
passion kiUeth liim; this is no more than manslaughter. But had he killed the adulterer
deliberately and upon revenge after the fact and sufficient cooling time, it had been un-
doubtedly murder. For let it be observed, that in all possible cases deliberate homicide
upon a principle of revenge is murder. No man under the protection of the law is to be
the avenger of his own wrongs. If they are of such a nature for which the laws of so-
cicty will give him an adequate remedy, thither he ought to resort. But be they of what
nature soever, he ought to bear his lot with patience, and remember that vengeance be-
longeth only to the Most High. 1 Vent, 158. Sir T. Raijm. 212,
But if, upon a sudden quarrel, the parties fight upon the spot, or if they presently
fetch their weapons and go into the field and figlit, and one of tlicm falleth, it will be but
manslaughter; because it may be presumed the blood never cooled. It will be otiierwise
if they ap[)()iiit to fight the ne.\t day, or even upon the same day at such an interval as
that llie jiassion might have subsided: or if from any circumstances attending the case
it may be reasonably concluded, that their judgment had aetnully controlled the first
trans])orts of passion before they engaged, 'i'he same rule will hold, if after a quarrel
tiiey liiU into other discourse or diversions, and continue so engaged a reasonable time
for cooling. Foster, 297. AeZ. 27. 1 /i«icA:, c. 31. s. 22, 29. 4 /«. Com. 191. ^ Inst. 51.
1 Bulut, 86. See Murlcy's case, 7 St. Tr. 421. Croinp. 23. Kel. 56.
Where a man assailed has retreated from the assailant, and is secure in his separation
from further personal aggression, he has no right to return armed to the scene of con-
fliet, and voluntarily engage in a new contest with the aggressor. If he do so, and slay
liiin, he is guilty of miarder or munslaughler, according to the circumstances under
which the homicide is committed. If, on receiving such a deadly assault, he suddenly
leave the scene of outrage, procure arms, and in the heat of blood consequent upon the
wrong, return and renew the combat, and slay his adversary, both being armed, sucii an
homicide would be hut manslaughter. For the law from its sense of and te iderness to-
wards human infirmity, would consider that sufficient time had not elapsed for the blood
HISTORIA PLACITORUM CORONiE. 454^
A boy came into Osterhj park to steal wood, and seeing the
woodward climbs up a tree to hide himself, the woodward bids
him come down, he comes down, and the woodward struck iiiin
to cool and reason to resume its empire over the mind, smarting under the original
wrong. Com. v. Hare, 4 Penn. Law Jour. 257. The law assigns no limits within which
cooling time may be said to take place. Every case must depend on its own circum-
stances, Coin. V. Dougherty, 7 Smith's Law, 695, but the time in which an ordinary
man, in like circumstances, would have cooled, may be said to be the reasonable time.
Stale V. MCards, 1 Spear, 384.
In 1725, John Onelij was indicted for the murder o^ William Gower, and a special ver-
dict was found, stating that the prisoner, being in company with the deceased and three
other persons at a tavern in a friendly manner, after some time began playing at hazard,
when Rich, one of tlie company, asked if any one would set him three half-crowns,
whereupon the deceased, in a jocular manner, laid down three half-pence, telling Rich
he had set him tliree pieces, and the prisoner at the same time set Rich three half-
crowns, and lost them to him; immediately after which the prisoner, in an angry man-
ner, turned about to the deceased, and said, "it was an impertinent thing to set half-
pence, and that he was an impertinent puppy for so doing;" to which the deceased
answered, "whoever called him so was a rascal." Thereupon tlie prisoner took up
a bottle, and witli great force threw it at the deceased's head, but did not hit him,
the bottle only brushing some of the powder out of his hair. The deceased, in return,
immediately tossed a candlestick or bottle at the prisoner, which missed him; upon
wiiich lliey both rose up to fetch their swords, which then hung up in the room, and the
deceased drew his sword, but the prisoner was prevented from drawing liis by the com-
pany; tlie deceased thereupon tlirew away his sword, and the company interposing,
they sat down again for the space of an hour. At the expiration of that time the de-
ceased said to the prisoner, " we have had hot words, but you were the aggressor; but I
think we may pass it over, and at the same time offered his hand to the prisoner, who
made answer, "No, damn you, I will have your blood;" after which, the reckonino-
being paid, all the company except the prisoner left the room; but he, calling back the
deceased, closed the door, and the rest of the company, shortly after, hearing a clashing
of swords, found the deceased had received from the prisoner a mortal wound. It was
further found, that from the throwing of the bottles there had been no reconciliation.
Upon these facts all the judges were of opinion, that the defendant had been guilty of
murder, and that from the period which had elapsed there had been reasonable time for
cooling.
In delivering the opinion in this case, Raymond, C. J. discussed the subject of coolino-
time at length, and said, among other things, that " in cases of this nature the judges
are to determine what is malice, or what is a reasonable time to cool; and they must do
it upon the circumstances of the case; the jury are judges only of the fact, and we
must determine whether it be deliberate or not. Hence it is, that in summing up an
evidence, the judges direct the jury, — if you believe such a fact, it is so; if not, it is
otherwise; and they find either a general or a special verdict upon it. There is no
instance where the jury ever found that the fact was done of malice, or that the party
had or had not time to cool; but that must be left to the judges upon the circumstances
of the case. In Holloway^s case, it was left to the court to determine whether the tying
the boy to the horse's tail was not a malicious act. So in the case of the two boys who
had quarrelled, and the father ran after one of them and killed him, the court, and not
the jury, determined whether it was malice or not. Palm. 545.
In Bromicick's case, 1 Lev. 180, the declining an immediate encounter, because of
the disadvantage of his high heels, was held to be a deliberate act, that manitestcd a
coolness : and the same has been held, where the parties have debated about the cou-
veniency of place. A'e/yng, 56.
If A. says to B. I will give you a pot of ale to strike me, and B. strikes hi-hi, and
immediately A. kills B , it is murder; for A. knew what he was about, and deliberated
with himself how he might perpetrate the fact, and be at the same time (as he thought)
witliin the protection of the law. Crnmp. 49.
From all which cases it appears, that though the law of England is peculiarly favour-
able m making this distinction with regard to the passions of men, yet it must be such
a paission as for the time deprives a man of the exercise of his reason ; and wherever it
454^ HISTORIA PLACITORUM CORONA.
twice, and then bound him to his horse-tail, and dragged him till
liis shoulder was broke, whereof he died; it was ruled murder, be-
has appeared that he had the exercise of his reason, he is out of the protection of the
law, and has been held guilty of murder. Here was a reasonable titne to cool, and it is
plain it had its operation : the prisoner was cool enough to discourse for an hour; he de-
termined in his own mind upon deliberation what he would do; and declared his inten-
tion in those bitter and deliberate expressions : '* No, he would not pass it over, damn
him, he would have his blood;" the young man must come back, for he had something
to say to him. The interchange of blovv's, where there is malice, will make no altera-
tion : it does not, indeed, appear who struck first upon his returning into the room ; but
it is sufficient that the verdict finds no act inconsistent with the malicious declaration of
the party; nor can the declaration of the party deceased avail in this case, for that goes
only to his receiving the wound in a fair manner with regard to the nature of the com-
bat." Rex V. Onely, 2 Strange, 766. ,
Where the defendant, having been violently beaten and abused, made his escape, ran
to his house, eighty yards off, got a knife, ran back, and on meeting with the deceased,
stabbed him, it was held but manslaughter; but it was said that if, on the second
meeting, the defendant had disguised the fact of having a weapon for the purpose
of inducing the deceased to come witliin his reach, it would have been murder, such
concealment affording ground for the presumption of dehberation. Slate v. Norris,
1 Bay, 429.
In order to mitigate a homicide, committed in a second combat, by vi^hat oc-
curred at a previous one, which had fairly began on the sudden, both contests must
be considered as making one combat, or the first as a separate combat, must be con-
sidered as a sufficient sudden provocation for either a second combat, or for a sub-
sequent attack producing a contest not entitled to be called a mutual combat. Where
it appeared that the prisoner and the deceased, alter having been engaged in mutual
combat, on sudden occasion, fairly begun, were separated at the request of the priso-
ner, who was overcome and beaten in the contest; that the prisoner was held by one
of the persons present, but drew his knife and swore he would kill the deceased ; that
after releasing himself from the person holding him, he pursued the deceased, who had
left the place of combat, and who, upon being apprized of the pursuit by a call from
the person holding the prisoner, left the road on which he was walking, and provided
himself with a rail from a neighbouring fence; that on his return towards the road he
met the prisoner, gave back and struck liim several blows upon the head as he rushed
on, with the rail, which, breaking some ten paces from the point where the deceased
began to give back, the prisoner closed and inflicted the mortal blow; and that suffi-
cient time liad transpired, not only for the deceased to adjust himself after the fight
and walk deliberately two hundred and twenty-five yards, but for the prisoner after-
wards to pass over the same ground, as also for a person at a neighbouring house,
within hearing of the noise of the second quarrel, to reach the place of strife. The
court, under this state of facts, were of opinion, that both contests could not have con-
stituted one combat, nor could the second, in which the prisoner rushed with his drawn
knife upon his adversary, who had snatched the readiest means of defence at hand,
but was neither equally armed, nor willing to meet such a weapon, have been that fair
struggle which the law denominates a mutual combat. The jury having found a ver-
dict of guilty, the court refused to dif^turb it. State v. McCunts, 1 Spear, 384.
If a father see a person in the act of committing an unnatural offence with his son,
and insitantly kill him, it seems that it would be only manslaughter, and that of the low-
est degree; but if he only hear of it, and go in search of the person, and meeting liim,
strike him with a stick, and afterwards stab him with a knife and kill fiim, in point of
law, it will be murder. Kerr. v. Fisher, 8 Car. t^- P. 182.
In the same case, jier Park Baron, and Recorder Law.
In a case of killing, whether the blood has hud time to cool or not, is a question for
the court and not for the jury; hut it is for the jury to find what length of time elapsed
between the provocation received and the act done. lb.
Where the prisoner and the deceased, who were previously on intimate terms, were at
a public house drinking, when a scuflle ensued, and tlie deceased struck the prisoner in
the eye and gave Jiiin a black eye, the prisoner called for the police, and went away upon
HISTORIA PLACITORUM CORON^E. 454*=
cause, 1. The correction was excessive, and 2. It was an act of
deliberate cruelty. M 4 Car. B. R. HoUowcnfa case. (m) [12]
If the master desigiieth moderate correction to his servant, and ac-
cordingly iiseth it, and the servant by some misfortune dieth thereof,
this is not murder, but per infortunium. Crompt. 136. b. Dalt.
Clip. ^%. p. 245.,(?j) because the law alloweth him to use moderate
correction, and therefore the deliberate purpose thereof is not ex
malitid prsccogitata.
But if the master design an immoderate or unreasonable cor-
rection, either in respect of the measure, or manner, or instrument
thereof, and the servant die thereof, I see not how this can be ex-
cused from murder, if done with deliberation and design, nor from
manslaughter, if done liastily, passionately, and without delibera-
tion ; and herein consideration must be had of the manner of the
provocation, the danger of the instrument, which the master useth,
and the age or condition of the servant that is stricken, and the like
of a school-master towards his scholar.(o)
The sheriff hath a warrant to hang a man for felony, and he
beheads him, this is held murder, for it is an act of deliberation.
Co. P. C.;?. 52.[13]
A man hath the liberty of Infangthief€,{p) the steward of the
court gives judgment of death against a prisoner against law, this
was a cause of seizure of the liberty, but was not murder in the
(m) Cro. Car. 131. W. Jones, 198. Kelyng, 127. (o) Kehjng, 64, 65.
(n) Cap. 148. p. 478. {p) See Spelman's Glossary, 313.
the policeman coming up; in about five minutes, iiowever, he returned and stabbed the
deceased vvitli a Itnife, which he usually carried about him: Lord Tenterden, C. J., said,
that it was not every slight provocation, even by a blow, which will, when the party re-
ceiving it striiies with a deadly weapon, reduce the offence from murder to manslaughter;
and that, if there had been any evidence of an old grudge between tiie parties, the crime
would probably be murder; but he left it to the jury to say, whether, in the interval
during which the prisoner was absent, there was time for his passion to cool and reasoa
to gain dominion over his mind: if not, they should find him guilty of manslaughter
only. Rex v. Lynch, 5 C. Sf P. 324.
If, in fine, there be a sufficient cooling time for passion to subside and reason to inter-
pose, and the person so provoked afterwards kill the other this is deliberate revenge, and
not heat of blood, and accordingly amounts to murder. Wh. A7n. C. L. 247. State v.
Yarborough, 1 Hawks, 78. Rex v. Tliomas, 1 C. Sf P. 817. 1 Hawkins, P. C. c. 31. s. 29.
State v. Ruthfrford, 1 Haieks. 329. U. S. v. Thayer, 2 Wheeler, C. C. 503. People v.
Garretson, 2 Wheeler's C. C. 347. Rex v. Rankin, 1 R. i^- R. 43. Rex v. Ayres, ibid.
1 East, P. C. 243. Rex v. Anderson, 1 Russ. 447. Rex v. Kissell, 1 C. &; P. 43T.
Commonwealth v. Daily, 4 Penn. Law Journal, 156. Comnionwealth v. Green, 1 Ash-
vuad, 289.
[12] So in all other cases when, upon a sudden provocation, one beats another in a
cruel and unusual manner so that he dies, it is murder. 4 Bl. Com. 199. R. v. Tranter,
et al, 1 Strange, 499. Foster, 291. So also when tlie instrument used evidently en-
dangers life, malice will be implied. Rex v. Howland, 1 C. S^ P. 274. Macklin's case,
1 Lew. 225. I Hawk. P. C. c. 31. s. 39. Com. v. Drew, 4 Mass. 3d\. State v. Morgan,
3 Iredell, 136. Com. v. Murray, 2 Ashmead, 41. Penna. v. Bell Addison, 1G3; and the
intention to kill, see Murder of First and Second Degrees, post, page 454.
[13] See post. 406-502.
454* HISTORIA PLACITORUM CORONA.
judge, quia factnm judiciqUter, licet ignoranter. 2 R. 3. 10. a. the
case of the steward of the hberty of the abbot of Crowland.{\'\'\
[14] The statutes which have chiefly affected the law of homicide since Holers time
are as follow :
The act, 9 Geo. 4. c. 31. " for consolidating- and amending the statutes oi England rela-
tive to offences against the person," provides:
I. Tliat so much of the great charter made in tiie nintli year of the reign of king
Henry the Third, as relates to inquisitions of life or member; and so much of a
statute made in the fifty -second year of the same reign, as relates to murder; and so
much of a statute made in the third year of the reign of king Edward the First, as
relates to inquests of murder ; and sr much of a statute made in the sixth year of the
same reign, as relates to any person killing another by mistbrtune or in his own de-
fence, or in other manner without felony ; and so much of a statute made in the
second year of the reign of king Henry the Fifth as relates to persons fleeing for mur-
ders, manslaughters, robberies, and batteries; an act passed in the twenty-fourth year
of the reign of king Henry the Eighth, intituled, ''An act where a man killing a
thief shall not forfeit his goods;" so much of an act passed the thirty-third year of the
same reign, intituled "An act for murther and malicious bloodshed within tiie Courts,"
as relates to the punishment of manslaughter and of malicious striking, by reason where-
of blood shall be shed ; so mucli of an act passed in the first year of the reign of
king Edward the Sixth, intituled "An act for the repeal of certain statutes concern-
ing treasons, felonies, &c.," as relates to petty treason, murder, &c. ; an act passed the
fourth and fifth years of the reign of king Philip and queen Mari/, intituled "An act
that accessaries in murder and divers felonies shall not have the benefits of the clergy;"
an act passed in the first year of the reign of king Jumes the First, intituled "An act to
take away the benefit of clergy from some kind of manslaughter;" an act passed in the
second year of the reign of king George the Second, intituled, "An act for the trial of
murders in eases where either the stroke or death only happens within that part of Great
Britain called England;" tiiat part of the act of the twelfth year of king George the
First which is hereinbefore referred to, and the whole of an act in the twenty-fifth year
of the reign of king George the Second, intituled, " An act for better preventing the
horrid crime of murder," except so far as relates to rescues and attempts to re?cue; an
act passed in the forty-third year of the reign of king George the Third, intituled, "An
act for the further prevention of malicious shooting, and attempting to discharge loaded
fire arms, stabbing, cutting, wounding, poisoning, and the malicious using of means to
procure the miscarriage of women, and also the malicious setting fire to buildings ; and
also for repealing a certain act made in England in the twenty-first year of the late king
James ihe First, intituled, " An act to prevent the destroying and murthering bastard
children," and also an act made in Ireland in the sixth year of the reign of the late queen
Anne, also intituled '' An act to prevent the destroying and murdering of bastard chil-
dren," and for making other provisions in lieu thereof^ and an act passed in the same
forty-third year, intituled, " An act for the more effectually providing for the punishment
of offences in wilfully casting away, burning or destroying ships and vessels, and for the
more convenient trial of accessaries in felonies, and for extending the powers of an act
made in the thirty-third year of the reign of king Henry tiie Eighth, as far as relates to
murders, to accessaries to murders, and to manslaughters;" so much of an act passed in
the first year of the reign of his ])resent majesty, intituled, "An act to remove doubts
and to remedy defects in the law with respect to certain offences committed upon the
sea or within the jurisdiction of the Admiralty," as refers to the act of the forty. third
year of the reign of George the Third hereinbefore first mentioned; an act passed the
first year of the reign of his present majesty, intituled, "An act to repeal so much of the
several acts passed in the thirty-ninth year of the reign of Elizabeth, tho fourilt of George
the First, the fifth and eighth of George the Second, as inflicts capitiil i)unishnient
on certain offences therein specified, and to ])rovide more suitable and effectual punish-
ment for such offences;" and an act pass-ed in the third year of the present reign, inti-
tuled "An act for the further and more adequate punishment of persons convicted of
manslaughter, and of servants convicted of robbing tlieir masters, and of accessaries be-
fore the fact of grand larceny, and certain other felonies," sliall continue in force until
and throughout the last day oi' June in the present year, and shall from and ailcr that
HISTORIA PLACITORUM CORONA. 454«
day as to that part of the United Kingdom called England, and as to offences committed
witliiii the jurisdiction of the Admiralty of England, be repealed, except so far as any of
the said acts may repeal the whole or any part of any other acts, and except as to
otfences committed before or upon the said last day of June, which shall be dealt with
and punished as if tiiis act had not been passed; and this act shall commence and take
effect (except as hereinbefore excepted) on the first day of July in the present year.
II. That every offence which before the commencement of this act would have
amounted to petit treason, shall be deemed to be murder only, and no greater offence;
and all persons guilty in respect thereof, whether as principals or as accessaries, shall be
dealt with, indicted, tried and punished as principals and accessaries in murder.
III. Provides for the punishment of principals and accessaries in murder.
IV. Provides for period of execution as to marks of infamy — sentence to be pronounced
immediately — judges power to respite. ,
V. Provides for the dissection of the bodies of murderers.
VL Prison regulation as to murderers under sentence.
VII. British subjects charged in England may be tried there for murder or man-
slaugliter committed abroad.
VIII. Provides for the trial of murder and manslaughter in England when the death
or the cause of the death only happens in England.
IX. Provides for the punishment of manslaughter.
The Act of 2 t^ 3 Will. IV. c. 7.5. s. IG. repeals so much of the foregoing act of 9 Geo.
IV. c. 31. as directs that the bodies of murderers may be dissected — and provides that
such bodies may be hung in chains or buried as the court shall direct.
The Act of 4 Sf 5 Will. IV. c. 26.
I. Recites that whereas by an act passed in the 9th year of Geo. IV. it was enacted, That
the body of every person convicted of murder should after execution either be dissected or
hung in chains as to the court which tried the offender should seem meet. And whereas
by an act passed in the 10th year of the same reign alike provision is made with re.>pect
to persons convicted of murder in Ireland. And whereas by an act passed in the second
and third years of Will. IV. so much of the provision of the act passed in the ninth year
of Gen. IV. as authorized the court to direct that the body of a person convicted of murder
slmuld after execution be dissected is repealed, and instead thereof it was enacted that
such court shall direct that a prisoner so convicted shall be either hung in chains or
buried within the precincts of the prison in which such prisoner shall have been confined
after conviction, as to the court should seem meet; and that the sentence to be pronounced
by the court should express that llie body of such prisoner shall be either hung in chains
or buried within the precincts of the prison — and whereas it is expedient to amend these
acts — enacts, That so much of the Act of 9 Geo. IV. as authorizes the court to direct
that the body of a person convicted of murder should, after execution, be hung in chains,
and also so much of the Act of 10 Geo. IV. as authorizes the court to direct that the
body of a person convicted of murder should, after execution, be dissected or hung in
chains, and also so much of the Act of the 2d & 3d Will. IV. as provides, that in every
case of conviction of any prisoner for murder, the court shall direct such prisoner to be
hung in chains, is hereby repealed.
II. That in every case of conviction in Ireland, of any prisoner for murder, the court
shall direct such prisoner to be buried within the precincts of the prison where he shall
have been confined after conviction. ■ '
The Act of 6 &- 7 Will. IV. c. 30.
I. Repeals so much of two Acts of 9 and 10 Geo. IV, as directs the period "of execution,
and the prison discipline of persons convicted of the crime of murder; and
II. Enacts, that sentence of death may be pronounced after convictions for murder, in
the same manner, and the judge shall have the same power, in all respects, as after con-
viction for other capital offences.
UNITED STATES.
In the United States statutory enactments have made some changes in the ancient
doctrines of homicide. The rules of construction, however, remain the same and the
meaning of technical terms is unaffected. In questions of the law of homicide, the com-
mon law authorities are the basis on which courts apply the. statutes of the several states.
U. S. V. Manrill, 1 TV. C. C. R. 4G3. Pa. v. M Fall, Add. A56. Com. v. Thompson, G Mass.
134. Slate \: ZAler, 3 Halslcad, 220. State v. Norris, 1 Hay, 429. State v. Weaver,
2 Hay. Com. v. Daily, 4 Fcnn. Law Journal, 154.
454^ HISTORIA PLACITORUM CORONiE.
The Act of Congress of April 30, 1790, provides: If any person or persons shall com-
mit, upon tlie higli seas, or in any river, liaven, basin, or bay, out of the jurisdiction of
any particular State, murder or robbery, or any other offence, which, if Gommittcd with-
in tlie body of a county, would, by tiie laws of the United Stales, be punisliable with
death; or if any captain or mariner of any ship or other vessel, shall piratically and felo-
niously run away with such ship or vessel, or any goods or merciiandise to the value
of filty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman
shall lay violent hands upon his commander, thereby to hinder and prevent his fighting
in defence of his ship, or goods committed to his trust, or shall make a revolt in the ship;
every such offender shall be deemed, taken and adjudged to be a pirate and felon, and
being thereof convicted shall suffer death; and the trial of crimes committed on the high
seas, or in any place out of the jurisdiction of any particular state, shall be in the district
where the offender is appreiiended or into which he may first be brought. — Act 30th
April, 1790, sect. 8. See post. Act of 3d March, 1845, sec. 4.
If any seaman or other person shall commit manslaughter upon the high seas, or
confederate, or attempt or endeavour to corrupt any commander, master, officer, or mari-
ner, to yield up, or to run away with any vessel, or with any goods, or to turn pirate,
or to go over to or confederate with pirates, or in any wise trade with any pirate' know-
ing him to be such, or siiall furnish such pirate with any ammunition, stores or provi-
sions of any kind, or shall fit out any vessel knowingly and with a design to trade with
or supply or correspond with any pirate or robber upon the seas; or if any person shall
any ways consult, combine, confederate or correspond with any pirate or robber on the
seas, knowing him to be guilty of any such piracy or robbery; or if any seaman shall
confine the master of any vessel, or endeavour to make a revolt in such vessel; such per-
son so offending, and being thereof convicted, shall be imprisoned not exceeding three
years, and fined not exceeding one thousand dollars. Ihid. sect. 12.
If any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in
any other place or district of country, under the sole and exclusive jurisdiction of the
United Stales, commit the crime of wilful murder, such person or persons, on being
thereof convicted, shall suffer death. Ibid. sect. 3.
If any person or persons shall, within any fort, arsenal, dock-yard, magazine, or other
place or district of country, under the sole and exclusive jurisdiction of the United States,
commit the crime of manslaughter, and shall be thereof convicted, such person or persons
shall be imprisoned not exceeding three years, and fined not exceeding one thousand
dollars. Act 30th April, 1790, sec. 7.
If any person upon the high seas, or in any arm of the sea, or in any river, haven,
creek, basin or bay, within the admiralty and maritime jurisdiction of the United States,
and out of the jurisdiction of any particular state, shall commit the crime of wilful
murder, or rape, or shall, wilfully and maliciously, strike, stab, wound, poison, or shoot
at, any other person, of which striking, stabbing, wounding, poisoning, or shooting, such
person shall afterwards die upon land within or without the United States, every person
so offending, his or her counsellors, aiders or abettors, shall be deemed guilty of felony,
and shall upon conviction thereof, suffer death. Act 3d March, 1 825, sect. 4.
Whenever any criminal, convicted of any offence against the United Slates, shall be
imprisoned in pursuance of such conviction, and of the sentence thereupon in the prison
or penitentiary of any state or territory, such criminal shall, in all respects, be subject to
the same discipline and treatment as convicts sentenced by the courts of the state or ter-
ritory in which such prison or penitentiary is situated; and, while so confined therein,
shall also be exclusively under the control of the oflicers having charge of the same, under
the laws of the said state or territory. Act of June 30, 1834.
In a case before the Supreme Court of the United States, in 181 8, the cotlrt said, that
admitting that the third article of the constitution of the United States, which declares
that, ''The judicial power shall extend to all cases of admiralty and maritime jurisdic-
tion," vests in the United Stall s exclusive jurisdiction of all such cases, and that a nmr-
der committed in the waters of a state, where the tide ebbs and flows, is a case of admi-
ralty and maritime jurisdiction; Congress have not, in the 8th section of the act of 1791,
ch. 9. " for the punishment of certain offences against the United Slates," so exercised
this power as to confer on the courts of the United States jurisdiction over such murder.
United States v. liivans, 3 Whcaton, 33G.
Congress having in the 8th section of the act of 1790, chapter 0th, provided for the
punishtnent of murder, iVc. committed " upon the hijrh seas, or in any river, haven,
basin or bay, out of the jurisdiction of any ijarticiilar State," it is not the offence com-
mitted, but the bay, &.C. in which it is conunittcd, that must be out of the jurisdiction of
the State. Ibid.
HISTORIA PLACITORUM CORONA. 4546 •
The grant to the United States in the constitution of all cases of admiralty and mari-
time jurisdiction, does not extend to a cession of the waters in which these cases may
arise, or of general jurisdiction over the same. Congress may pass all Inws which are
necessary for giving the most complete effect to the exercise of the admiralty and mari-
time jurisdiction granted to the government of the Unon; but the general jurisdiction
over the place, subject to this grant, adheres to the territory as a portion of territory not
yet given away; and the residuary powers of legislation still remain in the state. The
United States v. Bevans, 3 Wheaton, 336.
On an indictment for murder, founded on the 8th Sect, of the Act of Congress of
April 3'yith, 1790, Ck. 36, the death as well as the mortal stroke must happen on the high
seas. United States v.'Mai{ill, 4 Dallas, 426.
The Federal Courts have no cognizance of a case where the mortal stroke w^as given
on the high seas, and the death occurred on shore in a foreign country. Ibid.
Murder, &.c. committed by persons on board a vessel not at the time belonging to the
subjects of any foreign power, but in possession of a crew acting in defiance of all law,
and acknowledging obedience to no government whatever, is within the 8th Section of the
Act of Congress of April 30, 1790, Ch. 36, and is punishable in the Courts of the United
States. United States v. Fabner and others, 3 Wh en t on, 6\0. United States v. Pirates,
5 IVheaton, 192. See also U. S. v. Furlong, 5 Wheaton, 134.
Under the 12lh Sect, of the Act of Congress oC April 30, 1790, Ch. 3^, manslaughter
is not punishable in the Courts of the United States, unless it be committed on the high
seas. United States v. Wilthcrger, 5 Wheaton, 56.
The Courts of the United States have jurisdiction of murder, committed on the high
seas, from a vessel belonging to the United States, by a foreigner being on board of such
vessel, upon another -foreigner being on board of a foreign vessel. Ibid,
The Courts of the United States have not jurisdiction of a murder committed by one
foreigner on another foreigner, on board a foreign vessel on the high seas. lind.
There is a distinction between the crimes of murder and piracy. The latter is an
offence within the criminal jurisdiction of all nations; not so with murder; it is punish-
able under the laws of each State. Pud.
The Courts of the United States have jurisdiction, under the Act of April 30th, 1790,
Ch. 36, of murder or robbery committed on the higli seas, although not committed on
board of a vessel belonging to citizens of the United States; as if she had no national
character, but was held by pirates, or persons not lawfully sailing under the flag of any
foreign nation. United States v. Holmes et al., 5 Wheat. 412.
In the same case, and under the same act, if the offence be committed oa board 'of a
foreign vessel, by a citizen of the United States, or on board a vessel belonging to citizens
of the United States by a foreigner, or by a citizen or foreigner, on board of a piratical
vessel, the offence is equally cognizable by the Courts of the United States. Ibid.
It is immaterial whether the offence was committed on board of a vessel, or in the sea,
by throwing the deceased overboard and drowning him, or by shooting him in the sea,
though he was not thrown overboard. Ibid,
In an indictment for a piratical murder, under the eighth section of the Act of April
30th, 1790, Ch. 36, it is not necessary to allege the prisoner to be a citizen of the United
States, nor that the crime was committed on board a vessel belonging to citizens of the
United States, but it is sufficient to charge it as committed from on board such a
vessel, by a mariner sailing on board such a vessel. United States v. Pirates, 5 Whea.
ton, 184.
To make a man a principal in a murder, it is not necessary that he should inflict the
niortul wound. It is sufficient if he be present, aiding and abetting the act. Nor is it
necessary tlinrt there should be a particular malice against the deceased. It is suflicient
if there be deliberate malignity and depravity in the conduct of the party. United States
T. Ross, 1 Gallison, C. C. R. 524.
If a number of persons conspire together to do an unlawful act, and death happen in
the prosecution of the design, it is murder in all. If the unlawful act was a trespass, the
murder, to affect all, must be done in the prosecution of the design. If the unlawful act
be a felony, it will be murder in all, although the death happen collaterally, or beside the
princi|)al design, lliid.
If several persons conspire to seize, with force and violence, a vessel, and run away
with her, and if necessary, to kill any person who shall oppose them in the execution of
the design, and death ensue in the prosecution of the desi^-n, it is murder in all who are
present, aiding and ahelting in executing the design. Ibid.
454*^ HISTORIA PLACITORUM CORONA.
The legal meaning' of "malice aforetlioucrlit," in cases of homicide, is not confined to
Iiomicide committed in cold blood witii settled design and premeditation, but extends to
all cases of homicide, however sudden tiie occasion, where the act is done with such
cruel circumstances as are the ordinary indications of a wicked, depraved, and malignant
spirit; as where the punishment inflicted by a party, even upon provocation, is out-
rageous in its nature and continuance, and beyond all proportion to the offence ; so that
it is rather to he attributed to diabolical malignity and brutality than to human infirmity.
And much, in these cases, depends on tlie instrument employed — whether dangerous to
life or not. The United States v. Cornell, 2 Mason's C. C. R. 91.
NEW YORK.
Revised Statutes, Part IV. Chap. 1. Title 1.
Sec. 4, The killing of a human being without the authority of lavp, by jioison, shooting,
stabbing, or any other means, or in any other manner, is either murder, manslaughter,
or excusable or justifiable homicide, according to the facts and circumstances of each
case.
Sec. 5. Such killing, unless it be manslaughter or excusable or justifiable homicide, as
hereinafter provided, shall be murder in the following cases :
1st. When perpetrated from a premeditated design to effect the death of the person
killed, or of any human being.
2d. When perpetrated by any act imminently dangerous to others, and evincing a de-
praved mind, regardless of human life, although without any premeditated design to
effect the death of any particular individual.
3d. When perpetrated without any design to effect death, by a person engaged in the
commissionof any felony.
Sec. 6. Every inhabitant or resident of this State, who shall by previous appointment
or engagement, fight a duel without the jurisdiction of this State, and in so doing, shall
inflict a wound upon his antagonist or ajiy other person, whereof the person thus injured
shall die within this State, and every second, engaged in such duel, shall be deemed guilty
of murder within this State, and may be indicted, tried and convicted in the county where
such death shall happen.
Sec. 7. Every person indicted under the provisions of the last section may plead a
former conviction or acquittal for the same offence, iii another State or country ; and if
such plea be admitted or established, it shall be a bar to any further or other proceedings
against such person for the same offence, within this State.
Sec. 8. The killing of a master by his servant, or of a husband by his wif5, shall «ot
be deemed any other or higher offence than if committed by any other perscm.
Sec. 9. Arson in the first degree, the punishment of which is prescribed in this title,
consists in wilfully setting fire to or burning in the night time, a dwelling-house, in
which there shall be, at the time, some human being; and every house, prison, jail, or
other edifice, which shall have been usually occupied by persons lodging therein at night,
shall be deemed a dwelling-house of any person so lodging therein.
Sec. 10. But no warehouse, barn, shed, or other out-house, shall be deemfed a dwelling-
house, or part of a dwelling-house, within the meaning of the last section, unless the
same be joined to, immediately connected with, and part of a dwelling-house.
Sec. 11. Whenever any convict shall be sentenced to the punishment of death, the
Court, or a mayor thereof — of whom the presiding judge shall always be one, shall make
out, sign and deliver to the Sheriff of the county, a warrant stating such conviction and
sentence, and ap|)ointing the day on which such sentence shall be executed.
Sec. 12. Such day shall not be less than four weeks, and not more than eight weeks
from the time of the sentence.
Sec. 13. The presiding judge of the Court at which such conviction shall have taken
place, shall immediately thereupon transmit to the Governor of this State, by mail, a
statement of such conviction and sentence, with the notes of testimony taken by such
judge on the trial. The expense of such statement, to be estimated at the rate allowed
for drafts and copies of pleadings in the Sujireme Court, shall be audited by the Comp-
triiller, and paid out of tiie treasury.
Sec. 14. The fJovonior sliall he authorized to require the opinion of the Chancellor,
the justices of the Su|)rein(; C^ourt, and of the attorney general, or of any of them, upon
any st<it( inent so furnislied..
Sec. 15. JNo judge. Court, or officer, other than the Governor, shall have any authority
HISTORIA PLACITORUM CORONA. 454'
to reprieve or suspend the execution of any convict sentenced to the punishnnent of death;
except sheritis, in the Q;jses and in the manner hercinaller provided.
Sec 16. If alter any convict shall have been sentenced to the punishment of death, he
sliall become insane, the Sheritf of the countyrWith the concurrence of the circuit judge
of the circuit, or if he be absent from the county, with the concurrence of any judge of
the Court before which the conviction was had, may summon a jury of twelve electors
to inquire into such insanity, and shall give immediate notice thereof to the district
attorney of the county.
Sec. 17. The district attorney shall attend such inquiry, and may produce witnesses
before the jury; for which purpose he shall have the same power to issue subpnenas as
for witnesses to attend a grand jury, and disobedience thereto may be punished by the
Court ot'Oyer and Terminer which shall next sit in such county, in the same manner as
disobedience to any process issued by such Court.
Sec. 18. The inquisition of the jury shall be signed by them and the Sheriff. If it be
found by such inquisition that such convict is insane, the Sheriff shall suspend execution
of the warrant directing the death of such convict, until he shall receive a warrant from
the Governor of this State, or from the justices of the Supreme Court, directing the exe-
cution of such convict.
Sec. 19. l^he Sheriff shall immediately transmit such inquisition to the Governor, who
may, as soon as he shall be convinced of t!ie sanity of such convict, issue a warrant
appointing a time and place for his execution, pursuant to his sentence.
. Sec. 20. If a female convict sentenced to the punishment of death, be pregnant, the
Sheriff shall in like manner summon a jury of six physicians, and shall give the like
notice thereof to the district attorney, who shall attend and have power to issue sub-
poenas, as herein before provided, and with the like effect. An inquisition shall in like
inat)ner be made and signed by the jurors and the Slieriff.
Sec. 21. If by such inquisition it appear that such female convict is quick with child, the
SherifF_sha]l in like manner suspend the execution of her sentence, and sljall transmit
the inquisition to the Governor.
Sec. 22. Whenever the Governor shall be satisfied that such female convict is no longer
quick with child, he shall is.sue his warrant appointing a day for her execution pursuant
tt) her sentence, or he may in his discretion commute her punishment to perpetual im-
prisonment in the State prison.
Sec. 23. Whenever for any reason, any convict sentenced to the punishment of death,
shall not liavc been executed pursuant to such sentence, and the same shall stand in full
force, the Supreme Court, on the application of the attorney general, or of the district
attorney of the county where the conviction was had, shall issue a writ of habeas corpus,
to bring such convict before such Court; or if he be at large, a warrant for his appre-
hension may be issued by the said Court, or any justice thereof.
Sec. 24. Upon such convict being brought before the Court, they shall proceed to inquire
into the facts and circumstances — and if no legal reasons exist against the execution of
such sentence, they shall sign a warrant to the Sheriff of the proper county, commanding
him to do execution of such sentence, at such time as shall be appointed therein; which
shall be obeyed by such sheriff accordingly.
Sic. 25. The punishment of death shall in all cases be inflicted, by hanging the convict
by the neck, until he be dead.
Sec. 26. Whenever any person shall be condemned to suffer death for any crime of
which sue}] person shall have been convicted in any Court of this State, such punishment
shall be inflicted within the walls of the prison of the county in which such conviction
shall have taken place, or within a yard or enclosure adjoining said prison.
• Sec. 27. It shall be the duty of the Sheriff or under-sherifi' of the county to be present
at such execution, and to invite the presence, by at least three days' previous notice, of
the judges, district attorney, clerk and surrogate of said county, together with two phy-
sicians and twelve reputable citizens, to be selected by said Sheriff or under-sheriff'. And
the said Sheriff or under-sheriff shall, at the request of the criminal, permit such minis-
ter or ministers of the gospel, not exceeding two, as said criminal shall name, and any
of the immediate relatives of said criminal, to attend and be present at such execution ;
and also such officers of the prison, deputies and constables as said Sheriff or under-
sheriff .shall deem expedient to have present; but no other persons than tiiosc herein
mentioned sliall be permitted to be present at such execution; nor shall any person under
age be allowed to witness the same.
Sec. 28. The Sheriff or under-sheriff and judges attending such execution, shall pre-
pare and sign, ofHcially, a certificate setting forth the time and place thereof, and that
454J HISTORIA PLACITORUM CORON^^.
such criminal was then and there executed in conformity to the sentence of tiie Court,
and the [irovisions of this act; and shall procure to said certificate the signatures of the
otiier puhlic officers and persons not relatives of the criminal, who witnessed such execu-
tion. And the Sheriff or under-sheritf shall cause such certificate to be filed in the
office of the clerk of said county, and a copy thereof to be published in the State paper,
and in one newspaper, if any, printed in said county. 2 R. S. 2d Ed. p. 546, et seq.
Title 2, Article 1, (of same part and chapter.)
Sec. 1. The killing' of one human being, by the act, procurement or omission of
another, in cases where such killing- shall not be murder according to the provisions of
the first title of this chapter, is either justifiable or excusable homicide or manslaughter.
Sec. 2. Such homicide is justifiable when committed by public officers, and those acting
by their command, in their aid and assistance, cither —
1. In obedience to any judgment of a competent court; or,
2. When necessarily committed in overcoming actual resistance to the execution of
some legal process, or to the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been- rescued or who
have escaped; or,
4. When necessarily committed in arresting felons fleeing from justice.
Sec. 3. Such homicide is also justifiable, when committed by any person, in either of
the following cases :
1. When resisting any attempt to murder such person, or to commit any felony
upon him or her, or upon or in any dwelling-house in which such person shall be; or,
2. When committed in the lawful defence of such person, or of his or her husband,
wife, parent, child, master, mistress or servant, when there shall be a reasonable ground
to apprelicnd a design to commit a felony, or to do some great personal injury, and there
shall he imminent danger of such design being accomplished; or,
3. When necessarily committed in attempting by lawful ways and means to appre-
hend any person for any felony committed; or in lawfully suppressing^any riot; oi; in
lawfully keeping and preserving the peace.
Sec. 4. Such homicide is excusable when committed —
1. By accident and misfortune in lawfully correcting a child or servant; or in doing
any other lawful act by lawful means with usual and ordinary caution, and without any
unlawful intent; or,
2. By accident and misfortune, in the heat of passion, upon any sudden and sufficient
provocation, or upon a sudden combat, without any undue advantage being taken, and
without any dangerous weapon belong used, and not done in a cruel or usual manner.
Sec. 5. Whenever it shall appear to the jury, on the trial of any person indicted for
murder or manslaughter, that the alleged homicide was committed under circutnslances,
or in cases where by law such homicide was justifiable or excusable, the jury shall ren-
der a general verdict of not guilty.
Sec. 6. The killing of a human being, without a design to effijct death, by the act,
procurement, or culpable negligence of any other, while such other is engaged —
1. In the perpetration of any crime or misdemeanor not amounting to felony; or,
2. In an attempt to perpetrate any such crime or'misdemeanor.
In cases where such killing would be murder at the common law, shall be deemed
manslaughter in the first degree.
Sec. 7. Every person deliberately assisting another in the commission of self-murder,
shall be deemed guilty of manslaughter in the first degree.
Sec. 8. The wilful killing of an unborn quick child, by any injury to the mother of
such child, which would be murder if it resulted in the death of such mother, shall be
deemed manslaughter in the first degree.
Sec. I). Repealed. See post, act of May I3th, 1845.
Sec. 10. The killing of a human being, without a design to effijct death, in a heat of
passion, but in a cruel and usual maimer, unless it be committed under such circum-
stances as to constitute excusable or justifiable homicide, shall be deemed manslaughter
in the second degree.
Sec. 1 1. Every ]»crson who shall unnecessarily kill another, either
1. While resisting an attempt by such other person to commit any felony, or to do
any other unlawful act; or,
2. After sucli attempt shall have fiiilod;
Shall be deemed guilty of manslaughter in the second degree.
Sic. 12. The killing of another in the heat of passion, without a design to effect
death, by a dangerous weapon, in any case c.vccpt such wherein the killing of another
HISTORIA PLACITORUM CORONiE. 454k
is herein declared to be justifiable or excusable, shall be deemed manslaughter in the
third degree.
Sec. 13. The involuntary killing of a human being, by the act, procurement, or
culpable negligence of another, while such other person is engaged in the comniit-sion
of a trespass, or other injury to" private rights or property, or engaged in an attempt to
commit such injury, shall be deemed manslaugiiter in the third degree.
Sec. 14. If the owner of a mischievous animal, knowing its propensities, wil-
fully suffer it to go at large, or shall keep it without ordinary care, and such animal,
while so at large or not confined, kill any human being, who shall have taken all the
precautions which the circumstances may permit, to avoid such animal, such owner
shall be deemed guilty of manslaughter in the tliird degree.
Sec. 15. Any person navigating any boat or vessel for gain, who shall wilfully or
negligently receive so many passengers, or such a quantity of other lading, that by
means thereof such boat or vessel shall sink or overset, and thereby any human being
shall be drowned or otherwise killed, shall be deemed guilty of manslaughter in the
third degree.
Sec. 16. If the captain or any other person, having charge of any steamboat used for
the conveyance of passengers, or if the engineer or other person having charge of the
boiler of such boat or of any other apparatus for the generation of steam, shall, from
ignorance or gross neglect, or for the purpose of excelling any other boat in speed,
create, or allow to be created, such an undue quantity of steam as to burst or break the
boiler or other apparatus in which it shall be generated, or any apparatus or machinery
connected therewith, by which bursting or breaking, any person shall be killed : every
such captain, engineer, or other person, shall be deemed guilty of manslaughter in the
tliird degree.
Sec. 17. If any physician, while in a state of intoxication, shall, without a design to
efifect death, administer any poison, drug or medicine. Or do any other act to another
person, which shall produce the death of such other, he shall be deemed guilty of man-
slaughter in the third degree.
Sec. 18. The involuntary killing of another, by any weapon, or by means neither
cruel nor unusual in the heat of passion, in any cases other than such- as are herein de-
clared to be excusable homicide, shall be deemed manslaughter in the fourth degree.
Stc. 19. Every other killing of a human being, by the act, procurement, or culpable
negligence of another, wliere such killing is not justifiable or excusable, or is not de-
clared in this cJiapter murder, or in this title manslaughter of some other degree, shall
be deemed manslaughter in the fourth degree.
Sec. 20. Persons convicted of manslaugiiter in the first, second, or third degrees, shall
be punished by imprisonment in a state prison, as follows:
1. Persons convicted of manslaughter in the first degree,for a term not less than seven
years.
2 If convicted of manslaughter in the second degree, for a term not less than four,,
and not more than seven years.
3. If convicted of manslaughter in the third degree, for a term not more than four
years, and not less than two years.
Sec. 21. Every person convicted of manslaughter in the fourth degree, shall be
punished by imprisonment in a state prison for two years, or by imprisonment in a
county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or
by both such fine and imprisonment. 2 R. S. 2d ed. p. 546, et seq.
By the Act of May 13, 1845.
1. Every person who shall administer to any person pregnant with a quick child, or-
prescribe for any such woman, or advise or procure any such woman to take any nicdi-
cine, drug, or sub.stance whatever, or shall use or employ any in.'^trument or other means,
with intent thereby to destroy such child, unless the same shall have been necessary to
preserve the life of such mother, shall be deemed guilty of manslaughter in the second
degree.
2. Every person who shall administer to any pregnant woman, or prescribe for any
such woman, or advise or procure any such woman to take any medicine, drug, or sub-
stance or thing whatever, or shall use or employ any instruments or ether means what-
ever, with intent thereby to procure the miscarriage of any such woman, shall, upon
conviction, be punished by imprisonment in a county jail, not less than three months nor
more than one year.
3. Every woman who shall solicit of any person any medicine, drug, or substance or
thing whatever, and shall take the same, or shall subuiit to any operation or other means
454^ HISTORIA PLACITORUM CORONA.
whatever, with intent thereby to procure a miscarriagfe, shall be deemed guilty of a mis-
demeanor, and sliall upon conviction, be punislied by imprisonment in the countyjail not
less than three montlis nor more than one year, or by a fine not exceeding one thousand
dollars, or by botli such fine and imprisonment.
4. Any woman who shall endeavour privately, either by herself or the procurement of
others, to conceal the death of any issue of her body, which if born alive would by law
be a bastard, whether it was born dead or alive, or whether it was murdered or not, shall
be deenied guilty of a misdemeanor, and shall, on conviction thereof, be punished by im-
prisonment in a county jail not exceeding one year.
5. Any woman who sliall be convicted a second time of the offence specified in the
fourth section of this act, shall be imprisoned in a state prison for a term not less than
two or more than five years.
6. Section nine, article first, title second, of chapter one, of the fourth part of the Re.
vised Statutes; and section twenty -one, title six, chapter one, of the fourth part of the
Revised Statutes, are hereby repealed.
In Enqch^s case, (1834") Cliancellor WalwortTi delivering the judgment of the Court of
Errors of JVew; York, said: "Where an offence is created by statute, which was not an
offence by the common law, it is a general rule that the indictment must charge the
offence to have been committed under the circumstances, and with the intent mentioned
in the statute, which of course contains the only appropriate definition of the crime.
State v. Jones, 2 Yerg. Ten. R. 22. State v. O. Bannon, 1 Bailei/s Law, R. 144. But even
in that case it is not necessary to pursue the exact words of the statute creating the
offence, provided other words are used in the indictment which are equivalent, or words
of more extensive signification, and which necessarily include the words used in the
statute; as where advisedly is substituted for knowingly, or maliciously for imlfully, and
the like. The King v. Fuller, 1 Bos. ^ Pull. 180. ^United States v. Bachelder, 2 Gall.
R. 15. It is otherwise in indictments for common law offences, where the law has
adopted certain technical expressions to define the offence, or to indicate the intention
with whicli it was committed; in which cases the crime must be described, or the inten-
tion must be expressed by the technical terms prescribed, and no other. Thus, in an
indictment for murder, the terms, murder of his malice aforethought, are considered ab-
solutely necessary in describing the offence: and if these words are left out of the indict-
ment, it will be deemed a case of manslaughter only. In determining the question whether
an indictment should be drawn as at the common law, or should appear to be founded
upon a statutory provision which is applicable to the offence, the following rules are to be
observed : If the statute creates an ort'ence, or declares a common law offence, when com-
mitted under particular circumstances not necessarily included in the original offence,
punishable in a different manner from what it would have been without such circum-
stances; or where the statute changes the nature of the common law offence to one of a
higher degree, as where what was originally a misdemeanor is made a felony, the in-
dictment should be drawn in reference to the provisions of the statute creating or
changing the nature of the offence, and should conclude against the form of the statute;
but if the statute is only declaratory of what was previously an oflTence at common
law, without adding to, or altering the punishment, as was the statute of 25 Edward III.,
declaring what should be considered and adjudged treason, the indictment need not con-
clude against the form of the statute, 1 Deac. Crim. Law, 661.
The object of the legislature in adopting the provisions of the revised statntes relative
to homicide, in tiie recent revision of the laws, certainly was not to create a new offence
of murder; but the intention uiuloubtcdiy was to restore the ancient common law on that
subject, as it .existed at the time when the common law form of indictment was origi-
nally ado|)ted, and to draw a proper line of discrimination, if possible, between the offence
which was hereafter to be considered a felonious killing, with malice aforethought, which
alone constitutes the crime of murder, and what was to be deemed a felonious killing
without such malice, ilow fir they have succeeded as to the last of these objects, may
perhaps be considered as a nintter of some doubt. l>iit they have unquestionably suc-
ceeded in restricting some cases to the grade f)f manslaugliler, which, upon tiie princi-
ples of the common law, never ouglit to have been considered or adjudfjed to be olfoiices
of a higher grade; such as the unintentional killing of a person, or an offender who was
eng.-ijred in a riot or otiicr offence, that was a mere misdemeanor, and not a felony.
'I'hcre is another class of cases, referred to on the argument as cases of murder at the
common law, which, under the provisions of the revised statutes, must hereafter unques-
tionably he considered and adjti(lg( d to be manshiughter, and not murder. And tlicre is
also another and much larger class of cases which hereafter must be deemed murder, by
HISTORIA PLACITORUM CORONA. 454'"
reason of the implied malice that will now attach to the unlawful killin(r; which cases,
before the rcvi.^ion of the statutes, were cases of manshiugliter only. Tlie two classes
to wliicli I allude, depend however, upon a principle which does not require any change
■to be made in the common law form of the indictment for murder. Malice was implied
in many eases at the common law, where it was evident that the offenders could not
haTe had any intention of destroying human life, merely on the ground that the homicide
'was committed, while the person who did the act was engaged in the commission of some
other felonj', or in an attempt to peri)etrate some offence of that grade. Every felony,
by the common law, involved a forfeiture of the lands or goods of the offender, upon a
conviction of the offence; and nearly all offences of that grade were punishable with
death, with or without benefit of clergy. In such cases, therefore, the malicious and
premeditated intent to perpetrate one kind of felony, was, by implication of law, trans-
ferred from such offence to the homicide which was actually committed, so as to make
the latter offence a killing with malice aforethought, contrary to the real fact of the case
as it appeared in evidence. This principle is still retained in the law of homicide ; and
it necessarily follows, from the principle itself, that as often as the legislature creates
new felonies, or raises offences which were only misdemeanors at the common law to
the grade of felony, a new class of murders is created by the application of this principle
to the case of a killing of a human being, by a person'who is engaged in the perpetration
of a newly created felony. So, on the other hand, when the legislature abolishes an
offence which at the common law was a felony, or reduces it to the grade of a misde-
meanor oidy, the case of an unlawful killing, by a person engaged in the act which was
before a felony, will no longer be considered to be murder, but manslaughter merely.
Such changes in the law of murder have often occurred, both in this country and in
England; yet it never has before been thought necessary to change the common law
form of the indictment to meet cases of this description. The court and jury in such
cases immediately apply the common law principle, and the killing is adjudged to be
murder er manslaughter, according to the nature and quality of the crime that the offen-
der was perpetrating at the time the homicide was committed. Let us then apply these
principles to the case now under consideration. The revised statutes having declared
tliat hereafter offences punishable with death or with imprisomnent in the state prison,
and such offences only, shall be deemed felonies, it follows, of course, that an accessary
to a suicide, or a person who unintentionally kills in an attempt to perpetrate a first
offence of petit larceny, could not now be guilty of the common law offence of murder;
and therefore the jury could not have found him guilty under an indictment like the one
now before us. The unintentional killing of a female, in an attempt to produce an
abortion, with her own consent, was not in itself murder, although at the common law,
if she was quick with child, it formed a very aggravated case of felonious homicide; and
it is now made murder in England, by the operation of the statute which makes the de-
struction of the child a capital felony. It was also murder here, by the operation of the
third subdivision of the fifth section of the revised statutes, which attempt to define the
crime of murder, until the legislature, by the amendment of the ninth section of the next
title, 2 R. S. 661. § 9. 3. R. S. npp. 158. § 58. made the killing of the mother, as well as
the child, a case of manslaughter only. Some other eases of unintentional killing, by
persons engaged in riots and other misdemeanors below the grade of felonies, which pre-
vious to the revision had also been improperly considered as cases of murder contrary to
principles of the ancient common law, are now restored to that grade of homicide to
which tlicy properly belong. All offences of that description are now placed in the class
of homicides committed without malice aforetiiaught; except where the killing is perpe-
trated by an act imminently dangerous to others, and evincing a depraved mind, regard-
less of human life; which circumstances now, as at the common law, are sufHcicnt to
authorize the jury to find the defendant guilty of killing with malice aforethought. 2 R.
.S. 657. § 5. sub. 2.
From this examination of the subject, I have arrived at the conclusion that a common
law indictment for murder is proper, under the provision of the revised statutes. And
a defendant cannot be convicted on such an indictment of a felonious homicide with
malice aforethought, unless the evidence is such as to bring the case within the statutory
definition of murder." Tlie People v. Enoch, 13 Wendell, lod. Vide The People v. Mc-
Leod, 1 Hill, 377. The People v. Jackson, 3 Hill, 92.
On the trial of an indictment for murder, where there is no pretence that the prisoner
killed the deceased, while engaged in a riot or other misdemeanor, not amounting to a
felony, by misadventure, but the death ensued in consequence of an intentional violence
upon the person of the deceased; whether tiie prisoner designed to kill or nut, he is not
entitled to have the jury instructed that they cannot convict of murder, if they should
454° HISTORIA PLACITORUM CORONiE.
come to the conclusion that tlie mortal wound was inflicted in committing, or attempt-
ing to commit an otfence which of itself is less than felony. Homicide, occasioned by
committing or attempting to commit a misdemeanor, though murder at the common law,
is by the revised statutes reduced to manslaughter in the first degree. The People v.
Rector, 19 Wendell, 569.
Manslaughter ditfers from murder in this, that though the act which occasioned the
death be unlawful, or likely to be attended with bodily mischief, yet tlie malice, eitlier
express or implied, wliich is the very essence of murder, is presumed to be wanting; and
the act being imputed to the infirmity of human nature, the punishment is proportionably
lenient. Ex parte Tayloe, 5 Cowen, 51.
On a trial for murder, where it appeared that the deceased sought to gain admittance
into a house of ill fame by violence and against the will of the keeper thereof, who made
an attack upon the aggressor, and death ensued, it was held, that testimony that threats
made a week previous to the assault by persons who had broken into the house, that
tliey would return some other night and break in again, might be received and submitted
to the consideration of the jury, under the" instruction of the court; although it seems
that for the rejection of such evidence, where it was not shown that the deceased was of
the party who made the threats, a new trial would not be granted. The People v. Rector,
19 Wendell, 569.
As to bail in homicide, see Ex parte Tayloe, 5 Cowen, 51. Goodwin's case, 1 Wit.
Cr. C. 443.
MASSACHUSETTS.
Every person who shall commit the crime of murder, shall suffer the punishment of
death for the same. Rev. Stat. chap. 125, sect. 1.
In every case of conviction of the crime of murder, the court may, in their dis-
cretion, order the body of the convict, after his execution, to be dissected, and
the sheriff, in such case, shall deliver the dead body of such convict, to a professor of
anatomy and surgery, in some college or public seminary, if requested ; otherwise, it
shall be delivered to any surgeon, who may be attending to receive it, and who will
engage for the dissection therepf. Ihid. sect. 2.
Every person, being an inhabitant or resident of this state, who shall, by previous
appointment or engagement made within the same, fight a duel without the jurisdiction
of the state, and in so doing, shall inflict a mortal wound upon any person, whereof the
person so injured shall afterwards die, within this state, shall be deemed guilty of mur-
der witliin this state, and may be indicted, tried, and convicted in the county where such
death shall happen. Ibid. sect. 3.
Every person, being an inhabitant or resident of this state, who shall, by previous
appointment or engagement made within the same, be the second of either party, in
such as is mentioned in the preceding section, and shall be present as second, when
such mortal wound is inflicted, whereof death shall ensue within this state, shall be
deemed to be an accessary before the fact to the crime of murder in this state, and may
be indicted, tried, and convicted in the county where death shall happen. Ibid. sect'. 4.
Any person indicted under either of the two preceding sections, may plead a former
conviction or acquittal of the same offence, in any other state or county, and such plea,
if admitted or established, shall be a bar to all further or other proceedings against such
person, for the same offence, within this slate. Ibid. sect. 5.
Every person, who shall commit the crime of manslaughter, shall be punished by irn^
prisonmcnt in the state prison, not more than twenty years, or by fine not exceeding one
thousand dollars, and imprisonment in the county jail not more than three years. Ibid. sect. 9.
Where the act is committed deliberately, and is likely to be attended with dangerous
consequences, the malice requisite to murder will be presumed ; for the law infers that the
natural or probable eflccts of any act deliberately done, were intended by the actor.
Commonwealth v. Drew, 4 Muss. 391.
A bare trespass against the property of another, not his dwelling-house, is not a
suflicieiit provocation to warrant the owner in using a deadly weapon in its defence;
and if lie do, and with it kill the trespasser, it will be murder. Ibid.
If the boating, liowcvcr, he with an instrument and in a manner not likely to kill, it
will bo no more than manslaughter. Ibid.
So, if any one, under colour or claim of legal auliiority, unlawAilIy arrest, or actually
attempt or -offtSr to arrest another, and this latter in his resistance kills the aggrcssqr,
it will be no more than manslaughter. Ibid.
So if one, not a stranger, aids the injured party by endeavouring to rescue him,
HISTORIA PLACITORUM CORONA. 454°
or to prevent an unlawful arrest when actually attempted. Commonwealth v. Drew,
4 Mass. 39 1 .
If one, assuming to be a physician, however ignorant of the medical art, administers
to his patient remedies which result in his death, he is not guilty of manslaughter,
unless he has so much knowledge or probable information of the fatal tendency of his
prescriptions as to raise a presumption of obstinate, wilful rashness. Commonwealth v.
Thompson, 6 Mass. 134.
Where, however, such person has opportunity to know of the injurious effects of his
remedies, and then administers them, it would be competent for the jury to find him
g-uilty of manslaughter, even though he might not have intended any bodily harm to his
patient. Commonwealth v. Thompson, 6 Muss. 134.
Where one, having' committed a homicide, had been sent to the house of correction,
pursuant to Stat. 1797, c. 61, § 3, as a person dangerous to go at large, and was then
tried for murder, and acquitted on the ground of insanity, tiie court remanded him to
the house of correction till he should be duly discharged. Commonwealth v. Meriam,
7 Mass. 168.
If one counsel another to commit suicide, and the other, through the influence of the
advice, kill himself, the adviser is guilty of murder as principal. The presumption
of law in such case is, that the advice had the effect intended by the adviser, unless tlie
contrary be shown. Commonwealth v. Bowen, 13 Mass. 339.
When on the trial of an indictment for murder, the killing is proved to have been
committed by the defendant, and nothing further is shown, the presumption of law is,
that it was malicious, and an act of murder, and proof of matter of excuse or extenuation
lies on the defendant. Commonwealth v. York, 9 Metcalf, 93.
PENNSYLVANIA.
The Act o^ Ap-il 22d, 1794, reciting that, whereas the design of punishment is to pre-
vent the commission of crimes, and to repair the injury that hath been done thereby to
society, or the individual; and it hath been found by experience, that these objects are
better obtained by moderate, but certain penalties, than by severe and excessive punish-
ments; and whereas it is the duty of every government to endeavour to reform, rather
than exterminate offenders, and the punishment of death ought never to be inflicted
where it is not absolutely necessary to the public safety; provides that
No crime whatsoever, hereafter committed, except murder of the first degree, shall be
punished with death in the state oi Pennsylvaniq..
And whereas the several offences which are included under the general denomination
of murder, differ so greatly from each other in the degree of their atrociousness, that it
is unjust to involve them in the same punishment. Sect. 1 ; 3 Dallas, 600; 3 Smith, 18C;
Phr. 1th ed. 861.
All murder which shall be perpetrated by means of poison, or lying in wait, or by any
other kind of wilful, deliberate and premeditated killing, or which shall be committed in
the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be
deemed murder of the first degree ; and all other kinds of murder shall be deemed
murder of the second degree, and the jury before whom any person indicted for murder
shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict
whether it be murder of the first or second degree; but if such person shall be convicted
by confession, the court shall proceed, by examination of witnesses, to determine the de-
gree of the crime, and to give sentence accordingly, lb, sect. 2. See^ost. Murder in the
first and second degree.
Every person liable to be prosecuted for petit treason shall in future, be indicted, pro-
ceeded against, and punished as \s directed in other kinds of murder. Act of 23d April,
1829, Pamphlet, p. 341 ; Purdon, 7th ed. 861.
Wheresoever any person shall be charged with involuntary manslaughter, happening in
consequence of an unlawful act, it shall and may be lawful for the attorney-general, or
other person prosecuting the pleas of the commonwealth, with the leave of the court, to
waive the felony, and to proceed against and charge such person with a misdemeanor,
and to give in evidence any act or acts of manslaughter ; and such person or persons, on
conviction, shall be fined or imprisoned, as in cases of misdemeanor; or the said attor-
ney-general, or other person prosecuting the pleas of the commonwealth, may charge
both offences in the same indictment, in which case the jury may acquit the party of
one, and find him or her guilty of the other charge. lb. sect. 8.
Every person covicted of murder in the first degree, his or her aiders, abetters and
counsellors, shall suffer death by hanging by the neck. Sec. 15.
VOL. I. 40
454P HISTORIA PLACITORUM CORONiE.
Instead of the penitentiary punishment heretofore prescribed, the punishment by
solitary confinement at labour, shall be inflicted upon the several offenders- who shall,
after the first day o? July next, commit and be legally convicted of any of t-he offences
jiereinafter enumerated and specified; that is to say :
, Every person convicted of murder in the second degree, shall be sentenced to undergo
imprisonment in one of the state penitentiaries, as tlie case may be, and be kept in sepa-
rate or solitary confinement at labour for the first offence, for a period of not less than
lour, nor more than twelve years, and for the second offence for the period of iiis natural
life, and be fed, clothed and treated as is provided in tiiis act.
Every person duly convicted of voluntary manslaughter, shall be sentenced to undergo
a similar confinement at labor for the first offence, for a period not less than two, nor
more than six years; for a second offence for a period of not less than six, nor more
tiian twelve years, under the same conditions as are expressed in the first clause of this
section, and to give security on conviction either for the first or second offence, for good
beliaviour during life, or for any less time, according to tlie nature and enormity of the
offence. Act of 23d April, 1329, sect, i, Pamph. p. 341 ; 7th ed. Put don, 862.
The act of Jl^riM 0th, 1834, provides : • - .
Whenever hereafter any person shall be condemned to suffer death by hanging* for
any crime of which he or she shall have been convicted, the said punishment shall
be inflicted on him or her within the walls or yard of the jail of the county in
which he or she shall have been convicted; and it sliall bo the diity of the sheriff or
coroner of the said county to attend and be present at such execution, to which he shall
invite the presence of a pliysician, attorney-general or deputy attorney-general of the
county, and twelve reputable citizens, who shall be selected by the sheriff"; and the said
sheriff shall, at the request of the criminal, permit such ministers of the gospel, not ex-
ceeding two, as he or she may name, and any of his or her immediate relatives, to
attend and be present at sucli execution, together with such officers of the prison and
such of the sheriff's deputies as the said sheriff* or coroner in his discretion may think it
expedient to have present, and it shall be only permitted to the persons above designated
to witness the said execution: Provided, That no person under age shall be permitted on
any account to witness the same. Sec. 1.
After the execution, the said sheriff or coroner shall make oath or affirmation in
writing, that he proceed to execute the said criminal within the walls or yard afore-
said, at the time designated by tiie death-warrant of the Governor, and the same shall
be filed in the office of the clerk of the court of Oyer and Terminer of the aforesaid
county, and ^ copy thereof published in two or more newspapers, one at least of which
shall be printed in the county where the execution took place. Sec. 2. Pamph. L. 234.
I'urd. Dig. 7 ed.p. 945.
Manslaughter, though distinguished by the act of 1794, into voluntary and involuntary,
remains in other respects in Pennsylvania as in England. Pennsylvania v. M'Fall,
Addison, 256. In order to constitute the crime of voluntary manslaughter, evidence of
a positive intent to kill is not necessary; it is sufficient if there be such acts of violence
as may be expected to produce great bodily harm. Involuntary manslaughter is where
it plainly appears that neither death nor any great bodily harm was intended, bijt
death is accidentally caused by some unlawful act, or an act not strictly unlawful in
itself, but done in an unlawful manner, and without due caution. Com. v. Gable, IS. Sf
R. 428. Under the act of 1794, the attorney general must prosecute involuntary rtian-
siaughtcr as a misdemeanor, lliid.
One who 'is indicted for murder, cannot be convicted of involuntary manslautshter ;
because it is well settled that one cannot be convicted of a misdemeanor on an indict-
ment for felony. Com. v. Cahle, 7 iS. Sf It. 423.
Passion, arising from sufficient provocation, is evidence of the absence of malice, and
reduces homicide to manslaughter; but passion, without provocation, or provocation
without passion, is not sulFicieut : and when tiicre is both ]>rovocation and passion, the
provocation must be sufficient. Pennsylvania v. Honeyman, Add. 149. Pennsylvania v.
Bell, id. 162.
In order to constitute the crime of vduntary manslaughter, evidence of a positive in-
tent to kill, is not necessary; it is sufficient if there he such acts of violence as may
be expected to produce great bodily harm. Commonwealth v. Gable, 7 S. Sf K. '^28.
Til'^liman, C. .J.
Every act which apparently must do harm; which is done with intent to do harnij
HISTORIA PLACITORUM CORONA. 454'«
ai)d without provocation, and of which death is the consequence, is murder. Pennsylva-
nia V. Honeyrnan, Add. 148.
Unlawful killing, with a design to kill, is murder in the first degree; if with a design
only to hurt, it is murder in the second degree. Pennsylvania v. Lewis, Add. 2B3.
Premeditation is an essential ingredient to constitute murder in the first degree, under
the act of 1794; but the intention slill remains the true criterion of tlie crime, and the
intention of the party can only be collected from his words and actions. Respuhlica v.
Mulatto Bob, 4 Dull. 146.
If one, without uttering a word, should strike another on the head with an axe, this
would be deemed a. premeditated violence, within the act of 1794. Ibid.
With respect to tlje three modes of killing, first mentioned in the act of 1794, viz. by
poison, lying in wait, or any other kind of wilful and deliberate killing, the intention is
the essence of the crime. But in the last enumerated mode, viz. in the perpetration of the
crimes mentioned in the act, the intention is excluded as not necessary to constitute mur-
der in the first degree. Com. v. Dougherty, before Rush, Pres. 1 Br. Appx. xviii.
Wlierever it appears, from the whole evidence, ihat the crime was, at the moment,
deliberately or intentionally executed, the killing is murder in the first degree. Ibid.
It is sufficient to constitute the crime if the circumstances of wilfulness and delibera-
tion were proven, although they arose and were generated at \he period of the transaction.
Jbid. Pennsylvania v. McFall, Add. 257.
If the party killing had time to think, and did intend to kill, for a minute, as well as
an hour or a day, it is a deliberate, wiltul, and premeditated killing, constituting murder
in the first degree, within the act of Assembly. Com. v. Richard Smith, Oyer and Ter-
miner, Philad. 1816, before Rush, Pres., Pamphlet 231. Com. v. O'Hara, before McKean,
C. J., cited ibid.
The common law implied malice in every unlawful killing, and the burden of proof of
extenuating circumstances lay on the defendant. Pennsylvania v. Honeyrnan, Add. 148.
Pennsylvania \. Bell, id. 171. Pennsylvania v. McFall, id. 257. Pennsylvania v. Lewis
^ al., id. 282.
Involuntary manslaughter is, where it plainly appears that neither death nor any
great bodily harm was intended, but death is accidentally caused by some unlawful act,
or an act not strictly unlawful in itself, but done in an unlawful manner, and without
due caution. Ibid,
Killing by a blow, in mutual conflict, without necessity either for the protection of
life, or the possession of house, &c. is manslaughter. If necessary for such purpose, it is
homicide in self defence. Pennsylvania v. Robertson, Add. 248.
Manslaughter, though distinguished by the act of 1794, into voluntary and involuntary,
remains in other respects here as in England. Pennsylvania v. McFall, Add. 256.
But since the Act of 1794, the burthen of proof lies on the Commonwealth; unless the
circumstances of malice are proved, it is murder only of the second degree. Co7n. v.
O'Hara, ut supra.
Under the Act of Assembly, an unlawful killing, though it may he presumed murder,
will not be presumed murder in the Jirst degree. Pennsylvania v. Lewis, Add. 282-3.
Drunkenness does not incapacitate a man from forming a premeditated design of mur-
der; but as drunkenness clouds the understanding, and excites passion, it may be evi-
dence of passion onl}-, and of want of malice and design. Pennsylvania v. McFall, Add.
257.
If a person who has determined to take the life of another, seizes a musket to carry
that intention into effect, not knowing whether it was loaded or otherwise, but with the
expectation and desire that it should be, he is guilty of murder in any killing consequent
upon its discharge. Cominonwealth v. Green, 1 Ashmead, 289.
When a wound is not mortal in itself, but for want of proper application or from ne-
glect, turns to gangrene or fever, and that gangrene or fever is the immediate cause of
the death of the party wounded, the party by whom the wound was given is guilty of
murder or manslaughter, according to the circumstances of the case. Ibid.
To warrant a conviction of murder in the first degree, it is not essential that the
weapons used should necessarily nroduce death. Com. v. Murray, 2 Ashmead, 41.
When the deceased was killft by means of blows inflicted by a club not quite as
thick as an axe handle, held and used by one person, and by a leather strap with a metal
buckle at each end, held and used by another person, it was held that this was murder in
Uie first degree. Ibid.
If a pregnant woman be killed in an attempt by another person to produce abortion in
454' HISTORIA PLACITORUM CORONA.
her, this will only be murder in the second degree, IT the perpetrator did not intend to
take the life of the mother. Ex parte Chauncey, 2 Ashmead, 2'27. per King, Frest.
It is a fixed principle, that if, from tlie weapon or the manner of striking-, an intention
to kill may or must be collected ; provocation by words only, is not sufficient to make
the killing, but manslaughter. ^Pennsylvania v. Bdl, Add. 163.
See 2)ost, 454, t.
MARYLAND.
The Act of 1809, Ch. 138, may be considered the basis of the law of homicide, and
indeed of the whole criminal jurisprudence of the state of Maryland. The od Section of
this Act defines murder of the first degree to be, " all murder which shall be perpetrated
by means of poison, or by lying in wait, or by any kind of wilfiil, deliberate, and pre-
meditated killing, or which shall be committed in the perpetration of, or attempt to per-
petrate any arson, or to burn any barn, tobacco-house, stable, warehouse, or other out-
house, not parcel of any dwelling-house, having therein any tobacco, grain, hay, horses,
cattle or goods, wares and merchandize, rape, sodomy, mayhem, robbery or burglary."
All other murder is deemed murder of the second degree. Manslaughter is not defined
in the statute, and the offence remains the same as at common law.
Sec. 4tl), thus determines the punishment of these crimes. Every person convicted of
murder of the first degree, his or her aiders or abettors and councillors shall suffer death
by hanging ; every person duly convicted of murder in the second degree, or as acces-
sory thereto, shall be confined in the penitentiary for from five to eighteen years; every
person convicted of manslaughter, shall be confined in the penitentiary for a term not
exceeding ten years. The Act of 1825, Ch. 93, Sec. 1, enacts that no sentence to the
penitentiary shall be for less than two years. The terms of confinement with the limita-
tions aforesaid, are in the discretion of the Court. Sec. 16. No conviction or attainder
works corruption of blood or forfeiture of estate; nor can sentence of death be executed
within less than twenty days after judgment. The Governor, in whom is lodged the
pardoning and commuting power, is empowered and required to issue a warrant to the
Sheriff, and appoint the day of execution. 1795, CA. 82, Sec. 1. Thougli forfeiture of
estate does not result, the estate of persons sentenced to be hung is still liable, after repa-
ration made to the injured party for the expenses of the State. Standing mute is equiva-
lent to a plea of not guilty, and the trial proceeds as if such plea had been actually put
in. Sec. 12. In all capital cases the right of cliallenge exists without cause to twenty
jurors, and with cause to any number. Sec. 13. Foreigners who are indicted for an
offence committed within the State, are to be tried by a jury of the county, and cannot
challenge for want of foreigners on the panel returned. Sec. 15. The venue is laid in
the county where the mortal stroke or poison has been given, and not where the conse-
quent death occurs; unless the mortal stroke be given on Chesapeake Bay and the death
take place in any county of tlie State, when the place of death becomes the venue. So
where the blow and death both occur on the bay, the place of arrest is the place of trial.
Sees. 17, 18, 19. The venue may be changed to an adjoining county, on suggestion sup-
ported by affidavit, that an impartial trial cannot be had in the county where the indict-
ment is found. Sec. 20. But the person moving the change, must have resided in the
county at least twelve months before indictment. 1821, Ch. 244.
By the Act of 1817, Ch. 72, Svc. 2, convicts confined in the penitentiary may be wit-
nesses against each other for crimes committed in tlie penitentiary.
No slave can be confined in the penitentiary, but when not punishable with death, ia
punished with whipping, banishment, or sale into some foreign country. 1818, ch. 1^7.
And a free negro after having once been an inmate of the penitentiary, may be, upon
conviction of a second offence, sold into foreign bondage. 1835, ch. 200, sec. 3.
The act of 1824, ch. 144, presents a new element in murder of the first degree. It is
there enacted, that all murder committed in the arrest and imprisonment, or attempt to
arrest or imprison, with a view to a forcible removal from the state, any free person or
one entitled to freedom after a certain time, by one who knows such person to be free,
shall be deemed murder of the first degree. ^
The Maryland Reports contain no cases which elucidate the law of homicide. It
was, however, decided in the case of The State of Maryland v. Negro Jesse Evans,
7 Gill Sf John. 290, that where a statute creates an offence which did not exist at
common law, or changes the nature or degree of an offence existing at common law,
there an indictment for such an oftence must conclude ngainst the form of the statute;
but if a statute only direct a dillerent mode of punishment for a common law offence,
HISTORIA PLACITORUM CORONA. 454'
the indictment may conclude ag-ainst the peace. An indictment concluding contra pacem,
charges only a violation of the common law, and with such an indictment the accused
need only refer when preparing for his defence to the criminal code of the common
law to ascertain what are the ingredients constituting the offence charged, and what
will vindicate or excuse him.
By the l[)th section of the Bill of Rights, it is the right of every man to be informed
of a criminal accusation against him, and to have a copy of the indictment in due time
to prepare for his defence.
SOUTH CAROLINA.
The acts of this State on the subject of homicide are —
The act of 1821, 6 Sts. at large, 158, which makes the "malicious, wilful, and
deliberate murder" of a slave, a capital felony; and punishes the killing a slave " on
sudden heat tfnd passion," with fine and imprisonment. It has been decided on these
acts» that the offences punished by it, contain no other ingredients than murder and
manslaughter at common law, and that the common law definitions of murder and man-
slaughter apply to them respectively. MS.
The act of 1833, 6 -S. L. 489, abolishes branding, and substitutes fine and im-
prisonment in all cases. This applies to homicide by manslaughter.
The act of 1840, § 39. 7 S. L. 411, makes the master, or person having charge of
a slave, responsible for the death of a slave killed when no other white person is present;
but in such case, the master, or other person in charge, may exculpate himself by oath.
The statute of stabbing, 1 Jac. 1, c. 8, has been made of force in South Carolina.
2S. Z/. 507. So also the .S'(s. 52. Hen. 3. c. 25; 2 S. L. 418. and all other ancient statutes,
ousting murder of clergy are understood to be offeree by virtue of the general provisions
oftheact of 1712, 2-S: L. 413. §2.
In this State the following cases recognise the common law doctrine:
The general distinction between murder and manslaughter is, that the killing in the
first instance must be accompanied with malice aforethought, either express or implied.
To constitute the latter, it must be the result of sudden heat and passion. State v. Toohey,
2 Rice, S. C. Dig. 104.
But although this general distinction is well understood and universally admitted, yet
the shades of difference are many times so small as to render them difficult to be per-
ceived, and in the application of the rule to particular cases, much must always be left
to the sound discretion of the court and jury. It is true in general, that when death
ensues from a sudden affray, it is considered only as manslaughter; but that is where
a sudden quarrel rises without any intention to kill or injure another materially, and in
the course of the scuffle, after the parties are heated by the contest, one kills the other
with a deadly weapon. But there is no case where an unprovoked attack has been made
on a person with a deadly weapon, and death has ensued, that it has been held to be
manslaughter merely because it was sudden. Such a decision would go to protect one
who should fall upon another suddenly, and take his life, though actuated by the most
deep-rooted malignity. There is a difference between a sudden affray and sudden attack.
An affray means something like a mutual contest suddenly enacted without an appar-
ent intention to do great bodily harm. But malice is implied from every unprovoked
attack upon a person with a deadly weapon, without any apparent cause. Ibid.
In an indictment against two persons, Michael and Martin Toohey, for murder, where
the jury found one {Michael) guilty of manslaughter, and the other {Martin) guilty of
murder; on a motion for a new trial on behalf of Martin Toohey, the court held, among
other things, that it belonged to the jury to determine who gave the mortal blow, and
observed, "Even if we admit that it was given by Michael., yet this verdict might be
supported if they were acting in concert." It would only prove that they ought both
to have been convicted, and the wrongful acquittal of one, would not entitle the other to
exemj)lion. It is abundantly manifest that the deceased came to his death by one of
these defendants, and it belonged to the jury to judge of their respective guilt.
Another fact assumed by the- defendants' counsel, that the passions of tiie defendant
were excited by an unintended jostle of the prisoner or his wife by the deceased, is
equally unsupported by proof, and unavailing if true. In a city like Charleston, where
many persons are constantly passing until a late hour of the night, the accidental im-
pinging of one upon another in the dark would not authorize such a murderous attack
upon him. Such iii act of itself would be a sure indication of a "depraved and wicked
•454* HISTORIA PLACITORUM CORONA.
heart, void of all social duty, and fatally bent on mischief." Slate v. Toohey, 2 Rice,
S. C. Digest, lOi.
Every homicide must be accompanied with malice to make it murder; but so regard-
ful is the law of'human life, that it presumes every homicide to be accompanied with
malice, unless the contrary shall appear. Malice is said to exist whenever the circum-
stances attending the homicide exhibit the feelings of a wicked heart, regardless of
social duty and fatally bent on miscliief. It is inconsistent with the lessons of expe-
rience, the dictates of reason, and the highest authority to conclude, because the homi-
cide was committed in a passion, {furor brevis,) he was not under the influence of a
wicked heart. If without provocation he let loose his angry passions, which social
duty required him to control, and inflicted a death blow upon an unoffending brother,
he exhibits that malevolence of heart which makes him in the language of the law,
hostis humani generis. State v. Peters, 2 Rice, S. C. Digest, 105.
If a slave kill his master whilst the latter is correcting him, it is murder at common
law; and those present aiding and abetting arc guilty of the same offence. They
would even be guilty as principals in the first degree, although the actual perpetrator
himself were guilty of no crime if they made use of him as the instrument to effect
their own deliberate purpose of destroying the deceased. State v. Crank, 2 Bail. Rep. 64.
2 Rice's S.C. Dig. IQC).
So long as a party liable to arrest endeavours peaceably to avoid it he may not be
killed; but whenever, by his conduct, lie puts in jeopardy the life of any attempting to
arrest him, he may be killed, and the act may be excusable. State v. Anderson, 1 Hill,
S.C. Rep. •627.
If one in sudden heat of passion take the life of another, it is manslaughter, and not
murder; but there must be reasonable provocation, and what will constitute it, is the
principal difficulty in applying the distinction. The line which distinguishes between
those provocations, which will and will not extenuate the offences, cannot be certainly
defined. Such provocations as are in themselves calculated to provoke a high degree of
resentment, and ordinarily induce a great degree of violence wlien compared with those
which are slight and trivial, and from which a great degree of violence does not usually
follow, may serve to mark the distinction.
But no provocation, however grievous, will excuse from the crime of murder, where
from the weapon, or the manner of the assault, an intention to kill or to do some great
bodily harm was manifest.
If one interfere in an aff'ray to separate the combatants, and give notice of his intent,
and is slain by one of the combatants, it is nmrder.
The prisoner and one W. engaged in a fight, and were separated by the deceased.
Some time after tlie fight was renewed, and tlie deceased again interfered ; but being
unable to take the prisoner off', called a negro to his assistance, who, in tlie act of sepa-
rating the combatants, threw the prisoner against the wall. The prisoner then made at
the deceased (who endeavoured to avoid him) with a knife, and inflicted a mortal blow:
Held, that this was a case of murder. State v. Ferguson, 2 Hill, S. C. Rep. 619. 2 Rice's
Digest, 106, 107.
MURDER OF THE FIRST AND SECOND DEGREES.
The murder of the common law is, in many parts of the United States, divided into
murder of the first and second degrees. The distinction of murder into two degrees, is
found in Pennsylvania, Maine, New Hampshire, New Jersey, Virginia, Alabama, Ten-
nessee, Maryland, Michigan and Ohio. The distinctions in all these states, except Ohio
and Maiyland, are substantially the same, and nearly in the same language.
In Maine. — Whoever shall, unlawfully, kill any human being, with malice afore-
thought, either express or implied, shall be deemed guilty of murder. — Rev. Stat.ch. 154.
sect. 1.
Whoever shall commit murder, with express malice aforethought, or in perpetrating,
or attempting to [)cr])etrate any crime punishable with death, or imprisonment in the
state prison for life, or liir an unlimited term of years, shall be deemed guilty of murder
of the first degree, and shall be punished with death. — Iliid. sect. 2.
Whoever shall commit murder, otherwise than is set forth in the preceding section,
shall be deemed guilty of murder in the second degree, and shall be punished by impri-
BOTiment for life in the state prison. — Jliid. sect. .'J. %
Section 4, provides that, upon an indictment for murder, the jury shall inquire and find
HISTORIA PLACITORUxM CORON.E. 454^
whether the offence be of the first or second degree, or, if confessed, the court shall make
the inquiry.
In New Hampshire. — All murder committed by poi>on, starvinsr, torture, or other de-
liberate and premeditated killinjr, or committed in the pcqietration, or in the attempt at
the perpetration of arson, rape, robbery, or burglary, is murder of the first degree; and
all murder not of the first degree is of the second degree. If the jury shall find any per-
son guilty of murder,they shall also find, by their verdict, whether it is of the first or
second degree. — Rev. Stat. chap. 214. sect. 1.
If any person shall plead guilty to an indictment for murder, the court having cogni-
zance tlierecf shall determine the degree. — Ihid. sect. 2.
'J he punishment of murder in the first degree shall be death, and the punishment .of
murder in the second degree shall be solitary imprisonment, not exceeding three years,
and confinement to hard labour for life. — Jbid. sect. 3.
In Pennsylvania. — No crime, whatsoever, hereafter committed, (except murder in the
first degree,) shall be punished with death in the state of Pennsylvania. — Act 22d April,
1794. 3 Smith's Laws, 136; 7th. ed. Purdon, 861.
All murder, which shall be perpetrated by means of poison, or by lying in wait, or by
an}' other kind of wilful, deliberate and premeditated killing, or which shall be com-
mitted in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary,
shall be deemed murder of the first degree; and all other kinds of murder siiall be deemed
murder of the second degree; and the jury, before whom any person indicted for mur-
der, shall be tried, shall, if they find such person guilty thereof, ascertain, in their ver-
dict, whether it be murder in the first or -second degree; but if such person siiall be
convicted by confession, the court siiall proceed, by examination of witnesses, to deter-
mine the degree of the crime, and to give sentence accordingly. — Ibid. Sect. 2. See
ante, p. 554."
In New Jersey. — All murder which shall be perpetrated by means of poison, or bv
lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or
which shall be committed in perpetrating, or attempting to perpetrate, any arson, rape,
sodo^ny, robbery, or burglary, shall be deemed murder of the first degree; and all other
kinds of murder shall be deemed murder of the second degree; and the jury, before whom
any person indicted for murder, shall be tried shall, if they find such person guilty
thereof, designate, by their verdict, whether it be murder in the first or second decree;
but if such person shall be convicted on confession, in open court, the court shall proceed,
by examination of witnesses, to determine the degree of the crime, and give sentence
accordingly — (An act, supplementary to an act entitled, " An act for the punishment
of crimes," passed the seventeenth day of February, eighteen hundred and twenty-nine,
sect. 1.)
Every person convicted of murder of the first degree, his or her aiders, abettors,
counsellors and procurers shall suffer death; and every person convicted of murder of the
second degree, shall suffer imprisonment at hard labour, for any term, not less than five,
nor more than twenty years. — Sec. 2.
In Virginia. — All murder, which shall be perpetrated by means of poison, or by lying
in wait, or by duress of imprisonment or confinement, or by starving, or by wilful, ma-
licious and excessive whipi)ing, beating, or other cruel treatment or torture, or by any
othor kind of wilful, deliberate and premeditated killing, or which shall be conmiitted in
the perpetration or attempt to perpetrate, any arson, rape, robbery, or burglar}', shall
henceforth be deemed murder in the first degree; and all other kinds of murder shall be
deemed murder of the second degree; and the jury, before whom any person, indicted
for murder, shall be tried, shall, if they find such person guilty thereof, ascertain, in their
verdict, whether it be murder in the first or second degree; but if such person shall bo
convicted by confession, the court shall proceed by examination of witnesses, to de-
tcrmine the degree of the crime, and to give sentence accordingly.— iZ. C. chap. 171.
sect. 2,
In Alabama. — Every homicide, which shall be perpetrated by means of poison, lying
in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which
454" HISTORIA PLACITORUM CORONA.
shall be committed in the perpetration of, or in the attempt to perpetrate, any arson, rape,
robbery, or burglary, shall be deemed murder in the first degre(i; so, also, every homicide
perpetrutcd from a premeditated design, unlawfully and maliciously to effect the death
of any human being, other than him who is slain, or perpetrated by an act imminently
dangerous to the life of others, and evincing a depraved mind, regardless of human life,
although without any preconceived purpose to deprive of life any particular individual;
and every person, guilty of murder in the first degree, shall, on conviction, sutfer death,
or confinement in the penitentiary for life, at the discretion of the jury trying the same.
Penal Code, chap. 111. sect. 1. Clay's Digest, 412.
The next section provides that all other cases of murder, at common law, shall be
murder in the second degree; and punishable by imprisonment for not less than ten
years.
In Tennessee, — All murder which shall be perpetrated by means of poison, lying in
■wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or
shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery,
burglary or larceny, shall be deemed murder in the first degree; and all other kinds of
murder shall be deemed murder in the second degree; and the jury, before whom any
person indicted for rnurder shall be tried, shall, if they find such person guilty thereof,
ascertain, in tiieir verdict, whether it be murder in the first or second degree; but if such
person sliall confess his guilt, the court shall proceed by the empanelling of a jury and
examination of testimony, to find and determine the degree of tlie crime, and to give
sentence accordingly. — Act ]829, sect. 3. Laws of Tennessee, p. 316.
In Michigan. — All murder, which shall be perpetrated by means of poison or lying in
wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be
committed in the perpetration or attempt to perpetrate any arson, rape, robbery or bur-
glary, shall be deemed murder of the first degree, and shall be punished with deatli; and
all other kinds of murder shall be deemed murder of the second degree, and shall be
punished by confinement in the penitentiary for life, or any term of years at the discre-
tion of the court trying the same. — Rev. Stat, part 4. tit. 1. ch. 3. sect. 1.
In Maryland. — All murder which shall be perpetrated by means of poison, or by lying
wait, or by any kind of wilful, deliberate and premeditated killing, or which shall be
committed in the perpetration of, or attempt to perpetrate any arson, or to burn any barn,
tobacco-house, stable, warehouse, or other out-house, not parcel of any dwelling-house,
having therein any tobacco, grain, hay, horses, cattle or goods, wares and merchandize,
rape, sodomy, mayhem or burglary, is murder of the first degree, and all other murder,
is murder of the second degree. Act of 1809, ch, 138.
In Ohio. If any person shall purposely, and of deliberate and premeditated malice, or
in the perpetration, or attempt to perpetrate, any rape, arson, robbery, or burglary, or by
administering poison, or causing the same to be done, kill another, every such person
shall be deemed guilty of murder in the first degree, and upon conviction thereof, shall
suffer death. If any person shall purposely and maliciously, but without delibera-
tion and premeditation, kill another, every such person shall be deemed guilty of mur-
der in the second degree, and on conviction thereof, shall be imprisoned in the peniten-
tiary, and be kept at hard labour during life. Act of March 7, 18.35, {Statutes p. 229.)
These acts have not affected the meaning of the term murder, nor changed the common
law doctrine, exce])ting to designate certain classes of murder, by the prefix, /irst, and all
other kinds by the prefix second, and to assign to each kind of killing a distinct punish-
ment— both kinds being murder, at common law. The tests by which to ascertain — mur-
dcr generally being proved — to which degree; the case belongs, are to be found, either, IQ
the existence of certain facts connected with the manner or circumstances of the killing,
or in the condition of the mind of the accused at or before the moment of the killing. As
to the former, if murder be by poison, by lying in wait, by starving, or in the perpetration
or attempt to perpetrate arson, ra|)e, robbery, or burglary, &c. as set forth in the several
statutes; and, as to tho latter, if it be murder, with express malice aforethought, wilful,
deliberate, premeditated, &c. as also set forth in the several statutes — in eillier of these
HISTORIA PLACrrORUM CORONA. 4M'
cases, the killing is murder of the first degree — all other species of killing, which are
murder at common law, are murder of the second degree.
It'tlie killing be in either of tiie modes, or under either of the circumstances specifically
mentioned in the statutes, the conclusion is inevitable that the accused is guilty of mur-
der of the first degree. The chief points for discussion and decision, and the material
ditHculty in applying the law to particular cases, arises under the second clause. What
is deliberation, express malice aforethought, wilfulness and premeditation, and what state
of facts includes a conclusion of their e.\istence?
The earliest case in Pennsylvania, under the act of Assembly of 1794, (the earliest in
any of the States,) is the Commonwealth v. Mulatto Boh, 4 Dallas, 137. Cliief Justice
McKean presided at the trial. Judge Smith being also on the bench. It appeared that, a
number of negroes being assembled, about ten o'clock at night, a quarrel arose between
the prisoner and negro David, the deceased. For a while, the parties fought with fists;
and the prisoner was heard to exclaim " enough." The aflTray, however, became general,
and continued so for some time. When it was over, the prisoner went to a neighbouring
pile of wood, and furnished himself with a club. He was advi.sed not to use it, but declared
that he would, and entered the crowd witii it in his hand. After remaining there about ten
minutes, he left the crowd without his club; and, again repairing to the wood-pile, took
up an axe. Being, likewise, dissuaded from returning to the crowd with the axe, he
said "he would do it;" and striking the instrument, with great passion, into the ground,
swore tiiat he would " split down any fellows that were saucy." Accordingly, he mixed
once more among the people; a struggle was immediately heard about the axe; the pri-
soner then struck the deceased with it on the head; the deceased fell; and as he was
attempting to rise, the prisoner gave him a second blow on the head with the sharp edge,
wliicli penetrated to the brain. After languishing three days, death was the consequence
of tliis wound. " From these facts," said the Ciiief Justice, in summing up the evidence,
"we are to inquire what crime the prisoner has committed? Murder, in the first degree,
is the wilful, deliberate, and premeditated killing of another. There are various inferior
kinds of homicide; but, on the present indictment, our attention is confined to a conside-
ration of the highest and most aggravated description of crime. Then, let us ask, did
the prisoner wilfully kill the deceased ? It is not pretended that there was any accident
in tlie case; and, therefore, the act must have been wilful. Was the killing deliberate
and premeditated ? or was it the effect of sudden passion, produced by a reasonable pro-
vocation? There had been a combat with fists; but this was over, when the prisoner,
without any new provocation, first procured a club, and losing that weapon, afterwards
armed himself witii an axe. It cannot surely be thought that the original combat was a
sufficient provocation for tiie prisoner's taking the life of his antagonist. An assault and
battery may, indeed, be resisted and repelled by a battery more violent; but the life of a
fellow creature must not be taken, unless in self defence. It has been objected, however,
that the amendment of our penal code, renders premeditation an indispensable ingredient
to constitute murder of the first degree. But still, it must be allowed, that the intention
remains, as much as ever, the true criterion of crimes, in law, as well as in ethics; and
the intention of the party can only be collected from his words and actions. In the pre-
sent case, the prisoner declared, that he would 'split the skull of any fellows who should
be saucy;' and he actually killed the deceased in the way which he had menaced. But,
let it be supposed, that a man, without uttering a word, should strike another on the
head with an axe, it must, on every principle by which we can judge of human actions,
be deemed a premeditated violence. The construction which is now given to the act of •
assembly, on this point, must decide, whether the law shall have a beneficial or a pcrni-
cious operation. Before the act was passed, the prisoner's offence would clearly have
amounted to murder; all the circumstances implying that malice, which is the gist of
the definition of the crime at common law: and if he escapes with impunity, under an
intcrpretdtion of the act different from the one which we have delivered, a case can
liardly occur to warrant a conviction for murder in the first degree. Tenderness and
mercy are amiable qualities of the mind; but if they are exercised and indulged beyond
the control of reason and the limit of justice, for the sake of individuals, the peace, order
and happiness of society, will inevitably be impaired and endangered. As far as respects
the prisoner, I lament the tendency of these observations : but as far as respects the pub.
lie, I have felt it a sacred duty to submit them to your consideration" The prisoner
was convicted of murder in the first degree, Resp. v. Mulatto Bob, 4 Dallas, 145. See
also, Bennett v. Com. 8 Leiah, 781.
In a case in Viririnia, it appeared on trial, that about nine o'clock of the morning on
which the homicide was committed, the prisoner and the deceased were seen together in
454^^ HISTORIA PLACITORUM CORON.^.
the streets of Dumfries, as if about 1o engag^e in a personal conflict, but before any blow
they were separated. They had both remained in town from tiiat time until between
one and two o'clock of the same day, but how employed it did not appear; about the
latter liour, the prisoner was seen passings a tavern on the street, about four hundred yards
distant from the spot wiiere the murder was committed, and. on being accosted by the
witness, who was in the said tavern, he said he had been much injured by a man, whose
name he knew not, who had kicked him in the face; and the witness saw on the side. of
the prisoner's nose a fresh wound, from whicli the skin had been abraded to the superfi-
cial extent of a four-pence-half-penny, or nine-penny piece. The prisoner seemed angry,
and said he was determined to kill tiie man who had thus injured him. He then pro-
ceeded on about thirty yards farther, to the house of a butcher, and calling out the wife
of the butcher, who was then at dinner, told her that her fatlier (who was also concerned
with her husband in the trade of a butcher,) had sent him to borrow her husband's
butcher knife, whicli she immediately delivered to him. The shop where this took
place was about four hundred and tliirty yards from that where the murder was
committed. Upon his return in about five or six minutes from the last mentioned
shop with the knife in his hand, as lie was repassing the tavern before mentioned,
a short conversation took place between him and the first mentioned witness, in
which lie reiterated his determination to kill the deceased, and was warned against the
act by the witness. He proceeded along the same street about three hundred yards
farther and stopped at the ware-room of a merchant, where he asked the young man
who was in attendance, for a steel to sharpen the butcher's knife, declaring his intention
to kill tlic man who had injured him. About twenty yards from the ware-room he
turned into a cross street, and was heard denouncing loud threats of vengeance against
the deceased, and declaring his intention to kill liim. At the further corner of tlie first
square, after entering the cross street, the prisoner found the deceased on the steps of a
house, with his head hanging on his breast, apparently asleep. He roused the deceased
by kicking him, and as the deceased, who was unarmed, and made no attempt at resist-
ance, rose, the prisoner said he had come to kill him, and as tlie deceased answered that
" he reckoned no man wanted to kill him," the prisoner thrust the butcher's knife into the
breast of the deceased. Tlie deceased cried out, " You have stabbed' me," and the
prisoner replied, "damn you, if you don't Imsh, I will put the knife into you again."
The deceased walked about one hundred and fifty yards, fell, and expired. The
prisoner immediately going into a shop where he had a bundle, took it up, and walked
quietly out of town to a house about two miles distant, where he was domesti-
cated. To the owner of this house he related the incidents, and said he had given the
deceased his death wound, and would keep out of the way some days, until he could
ascertain whether or not he was dead. The prisoner and the deceased were both labor-
ers. It was proved that the deceased was a turbulent man, and reputed a hard fighter.
Nothing was said of the character of the prisoner. It did not appear that they had ever
been together until the day preceding the death, when they were at a cock-fight; but
whether they had any association there did not appear. At tl)e time of the murder the
prisoner eitlier did not know, or had forgotten the name of tlie deceased. Under the
charge of the court a verdict of murder in the first degree was rendered. Burgess v.
Cominonivralth, 2 Virginia cases, 484.
In another case under the Pennsylvarda act, it appeared that the prisoner was an hon-
est and industrious man, but addicted to intoxication, and when in that state was quar-
relsome. It also appeared that his wife occasionally drank too much; and that on the
day of the fatal occurrence they had fallen into a drunken squabble. During the quarrel
the wife threw several stones at him, one of which struck him on the arm. A few
moments after they were seen struggling together, but soon after the wife was discovered
fleeing with her infant in her arms, the prisoner pursuing her with an axe in his hand.
When he came within reach of her he aimed a blow at her which fell on the head of the
child as it lay upon the wife's shoulder, and caused a mortal wound, of which the child
died. The prisoner soon recovered himself and showed many signs of repentance
and manifested much distress at the manner of the child's death. The judge who
tried the case, in the course of his charge to the jury, said, "We now come to this
point: — what was the intention of the jirisoncr at the bar, when he killed Daniel
DougliCrty, his child ? for, if his intent was to kill his wife, and killing iier would have
been murder in the first degree, killing his child will also be murder in the same degree;
as nnich as if he had prepared a cup of poison for his wife and his child had drank it.
You, however, are in this case to judge of the law and facts. If you are of opinion the
injury the prisoner received from ids wife throwing stones at him, and hitting, him, kept
HISTORIA PLACITORUIM CORONiE. 454'
his passion boiling until he g^ave the fatal blow, we think it your duty to find him g-nilty
of manslaughter. But if you are of the opinion his passion had time to cool, or in fact
had cooled, after the assault on him by his wifr, it is your duty to convict him of murder
in tlie first degree." The verdict was manslaugiiter. Cojiunonicealih v. Dougherty^
7 Smithes Laics, 695.
In Tennessee, a verdict of murder in the first degree was sustained, where it
appeared that the deceased was killed on the night of the 3d of October, 1841 ;
that the prisoner and he had had angry difficulties from a period long anterior up to
the time of the commission of the offence, which resulted from mutual wrongs
done or charged; that the prisoner accused the deceased of having harboured his
wife, to his great personal injury, and the deceased accused him of having fired
his house; that on the 11th day of September, 1841, not many days before the
murder, the prisoner left the country in a steamboat, with threats in his mouth of
vengeance for his injuries, which he declared he would have before he left; that
one week before the murder, he returned and kept himself so concealed that but one
person saw him certainly, others saw what they took to be his tracks, and one, a person
in. disguise, whom he supposed might have been him; that on the night the deceased
took possession of the building which had formed the subject of tiie controversy between
them, he was killed, cowardly and treacherously ; and that the prisoner immediately
fled the country again, and being captured at Memphis, denied that he had been in the
County of Obion since his first departure on the 11th of September, but admitted that he
had returned up the river to within fitly miles of the residence of the deceased. Stone
\. The State, 4 Humphrey, 34.
Murder in the second degree includes all cases of deliberate homicide where the inten-
tion is not to take life, of which, homicide by a workman throwing timber from a house
into the street of a populous city, without warning, or pf a person shooting at a fowl,
animo furandi. and killing a man, are instances frequently given. Whiteford v. Coin.
6 Randolph, 7"21; There may, also, be cases where death ensues during a riotous affray,
under circumstances which would constitute murder at common law, but which, in
consequence of the want of a specific intent to take life being shown, amount but to
murder in the second degree. Thus, where it appeared that the deceased, during the
riots in Philadelphia in 1844, was killed while a desultory fire was going on, the object
of which was to prevent either of two contending parties from taking possession of a
position which both of them were desirous of obtaining, it was said that a homicide,
oonmiitted under such circumstances, though murder at common law, deliberation
being shown, might not be murder in the first degree, and a verdict of murder in
the second degree was consequently rendered. King, Pres't, who tried the case, how-
ever, charged the jury, "that if one or more of the parties sO engaged in an unlawful
combat, deliberately fire at and kill an innocent tiiird person, taking no part in tiie con-
flict, liaving no just reason to regard him as one of the belligerents, such killing would
be murder of the first degree. It would present the case of a wilful, deliberate and pre-
meditated killing, perpetrated with an instrument likely to take life, rendering the actual
perpetrators guilty of the highest grade of crime known to our criminal code. If the
testimony, in your judgment," he said, " brings clearly home to the defendant such a
charge, he should be convicted. If, however, the commonwealth has not fully satisfied
your minds in the affirmative of this position, or if the proofs adduced by the defen-
dant have rebutted this allegation, or thrown a fair doubt upon its certainty, you ought
not and cannot justly convict him of that part of the charge involving capital punish-
ment." Com. V. Hare, 4 Penns. Laic Jour. 401.
If a pregnant woman be killed in an attempt to produce abortion in her, and it
appears that the design of the operator was not to take the life of the mother, it is mur-
der in the second degree. Ex parte Chauncey, 2 Ashnead, 227.
Wherever the deliberate intention is to take life, and death ensues, it is murder in the
first degree ; wherever it is to do bodily harm, or other mischief, and death ensues, it is
murder in the second degree; while the common law definition of manslaughter remains
unaltered. But however clear may be the distinction between the two degrees, juries
not untrequcntly make use of murder in the second degree as a compromise, when they
believe murder to have been committed, but are unwilling, in consequence of circum-
stances of mitigation, to expose the defendant to its full penalties. In such cases courts
are not disposed to disturb verdicts, but permit them to stand, though technically incor-
rect. Thus, where S. having conceived and declared a design to kill P., the parties
met afterwards in front of S.'s own house, and a quarrel ensued, in which S. gave the
first offence; Pi proposed a fight; upon which S. retired for a very brief ti^ue into
454^ HISTORIA PLACITORUM CORONA.
his house, armed himself witli a loaded pistol, which he concealed in his pocket,
and instantly returned so armed to the scene of quarrel; then P. threw a brickbat
at S, which did not hit him, but falling short of him, broke, and a small fragment
struck S.'s child, standing within his own door, who cried out, and his hearing his child
cry out, but without looking to see whether he was hurt or not, exclaimed, '* he has
killed my cliild and I will kill him," advanced towards P. deliberately aimed and fired
the pistol at him, then retreating with his face towards S., and the shot took effect and
killed P. A verdict of murder in tiie second degree being rendered, the court refused to
set it aside. Slaughters v. Com, 11 Leigh, 682.
There are, however, certain features which, in cases of deliberate homicide, draw
forth, generally from the courts instructions to the jury that by them a deliberate intent
to take life is shown. Where a man makes use of a weapon likely to take life; where
he declares his intentions to be deadly; where he makes preparations for the concealing
of the body; where, before the death, he lays a train of circumstances which may be
calculated to break the surprise, or bafHe the curiosity which would probably be occa-
sioned by it; wJiere, in any way, evidence arises which shows a harboured design against
the life of another; — such evidence goes a great way to fix the grade of homicide at
murder in tlie first degree; as in Resp. v. Mulatto Boh, quoted ante, 454.^" Where a man
loaded a pistol, took aim at, and shot another, it was held murder in the first degree. Com.
V. Smith, 7 Smith's Laws, 6'J6. If one man shoot another through the head with a musket
or pistol ball, — if he stab him in a vital part with a sword or dagger, — if he cleave his
skull with an axe or the like, — it is almost impossible for a reflecting and intelligent mind
to come to any other conclusion than that the perpetrator of such acts of deadly violence
intended to kill. Com. v. Daily, 4 Penn. Law Journal, 157. Where the defendant delib-
erately procured a butcher's knife, and sharpened it for the avowed purpose of killing the
deceased; Com. v. Burgess, 2 Va. Cases, 484; where lie concealed a dirk in his breast,
stating, shortly before the attack, that he knew where the seat of life was; BennetVs case,
11 Zi(io-/i, 749; where he thrust a hand-spike deeply into the forehead of the deceased;
Swan v. State, 4 Humphrey, 139; the presumption was held to exist, that the killing was
wilful. See U. S.\. Cornell, 2 Mason, 94; Woodside v. State, 2 Howard, 656; State v,
Tuohey,2 Rice''s Digest, 104; Com. v. Webb, 6 Randolph, 121. But it is not necessary, to
warrant a conviction of murder in tlie first degree, that the instrument should be such as
Would necessarily produce death. Thus, where the weapon of death was a club not so
thick as an axe-handle, the jury, under the charge of the court, rendered a verdict of
murder in the first degree, it appearing that the blow was induced by a deliberate inten-
tion to take life. Com. v. Murray, 2 Ashmead, 57. The same presumption of intention is
drawn with still greater strength from the declared purpose of the defendant. Thus,
where the prisoner, a negro, said he intended " to lay for the deceased, if he froze, the
next Saturday night," and where the homicide took place that night; Jim v. State,
5 Humphrey, 174; where it was said, "I am determined to kill the man who injured
me;" Com. v. Burgess, 2 Va. Cases, 484; where the prisoner had declared, the day
before the murder, that he would certainly shoot the deceased; Com. v. Smith, 7 Smit.h''s
Laws, 697; where, in another case, the language was, " I will split down any fellow that
is saucy;" Com. v. Mulatto Bob, 4 Dallas, 146; where the prisoner rushed rapidly to the
deceased, and aimed at a vital part; Com. v. O'Hara, 7 Smith's Laws, 694; where a
grave had been prepared a short time before the homicide, though the deceased was not
ultimately placed in it, the whole plan of action being changed; Com. v. Zephon, Oyer Sf
Term. Phila. July, 1844, MSS. Wharton's Am. C. L. 289; in each of these cases it was
lield murder in the first degree. It must be noticed that premeditation, in the eye of
the law, has no defined limits; and if a design be but the conception of a moment it
is as deliberate, so fiir as judicial examination is concerned, as if it were the plan of
years. If the party killing had time to think, and did intend to kill, for a minute, as
well as an hour or a day, it is a deliberate, wilful, and premeditated^ killing, constituting
murder in the first degree. Com. v. Smith, 7 Smith's Laws, 697.
In an early ciise in Tennessee, it is true, it was said that a previous intent to take life
must be positively shown; Mitchell v. Slate, 5 Yerger, 340.; but such is not the opinion
which now obtains even in that state. State v. Anderson, 2 Tenness. 6; Dale v. State,
10 Yerger, 551. If the accused, as he ajiproached the deceased, and first came within
view of him at a slmrt distance, then formed the design to kill, and walked up with a
quick pace, and killed him without any |)rovoeation then, or recently received, it is mur-
der in the first degree. Whiteford v. ('om. 6 Randolph, 721; Anthony v. State, 1 Meigs,
265; Resp. v. Mulatto Boh, 'I Vullus, 1 16. " It is true," as was said in a late case, "the
act says the killing must be wilful, deliberate, and premeditated. But every intentional
HISTORIA PLACITORUM CORONA. 454**
act is, of course, a wilful one, and deliberation and premeditation simply mean that the
act was done with reflection, was conceived beforehand. No specific length of time is
required for such deliberation. It would be a most difficult task for human wit to furnish
any safe standard in this particular. Every case must rest on its own circumstances.
The law, reason, and common sense unite in declaring' that an apparently instantaneous
act may be accompanied with such circumstances as to leave no doubt of its being' the
result of predetermination." Com. v. Daley, 4 Penn. Law Journal, 156; Davis v. State,
S Humphrey, 439.
It is not necessary, nor is it the practice to desigriate the grade of homicide in the in-
dictment, nor that tlie killing should be charged to be wilful, deliberate, and premedi-
tated. Com. V. VV'tc/rs, 2 Va. Cases, 387; Mitchell v. Slate, .5 Yerger, 340 ; Com. v. Flan.
nagan, 8 Watts «.5" ^^rg. 415 ; Com. v. White, 6 Binney, 183 ; Com. v. Miller, 1 Va. Cases,
3lO; Com. v. -Gilbert, 2 Va. Cases, 70. So if murder be committed in the perpetration
of arson, rape, burglary, or robbery, it is not necessary that it should be so set out in the
indictment. Com. v. Flannagan, 8 Watts Sf Serg. 415. In Pennsylvania it is not neces-
sary that the indictment should conclude, contrary to the form of the act of assembjj/',
&,c. Com. V. White, 6 Binney, 183. On an indictment for murder, perpetrated by means
of poison, a verdict finding the prisoner "guilty in manner and form as stated in the in-
dictment," is as correct as of murder in the first degree, and sufficient to authorize the
judgment of death. Com. v. Earl, 1 Wharton, 525.
In Maine, the same line of distinction seems to have been taken as appears in the fore-
going cases. In the case of The Commonwealth v. Vurney, Shepley, J., charged the jury
that they could find either of four verdicts, not guilty, guilty of manslaughter, guilty of
murder in the second degree, or murder in the first degree. " If it was proved that the
prisoner killed Otis, the burden was upon him to reduce the offence from murder. The
distinction between murder in the first and second degree was, that it must be proved that
the deed was done with express malice, and with an intent to take life. Murder in the
second degree might be found where there was no intention to take life, but it was taken
not upon a mutual combat or sudden provocation, but in an assault made in consequence
of preconceived anger or resentment, although not amounting to an intention to kill.
That, in this case, to reduce the offence to manslaughter, the prisoner must satisfy them,
or they must be satisfied from the facts proved by the government, that the assault was
not the result of preconceived anger, but upon some new and sudden provocation given
at the time, or in the mutual combat. If the prisoner went there for the purpose of flog-
ging the deceased, and did make the assault accordingly, and there was no sutiicient pro-
vocation to excite him anew, and no mutual combat, then, although he did not intend to
kill, he would be guilty of murder in the second degree." Com.\. Varney, 8 Boston Law,
R.5i2. Vide Wh. Am. C. L. 287-290, where the above cases are collected.
The distinction taken, in Ohio, between murder in the first and murder in the
second degree, is different from that which obtains in other States. Thus it was
said, in a charge by Judge Wrisht ; "To convict of mudder in the first degree, you
must, in addition to the points I have mentioned, be satisfied, 1. That the prisoner
perpetrated the act purposely. 2. That he did it with intent to kill. 3. That he did
it of deliberate and premeditated malice. To constitute deliberate and premeditated
malice, the intention to do the injury must have been deliberated upon, and the
design to do it formed, before the act was done, though it is not required that either
should have been for any considerable time before. This supposes the party, by reflec-
tion, understood what he was about to do, and intended to do it in order to do harm. If
these things are all proved; and you find the defendant guilty of murder in the first
degree, you need examine- no further. If not proven to your satisfaction, you will then
examine further. To convict of murder in the second degree, you must be satisfied of
the general facts common to all the offences, which I have stated, and also of the follow-
ing: I. That the prisoner perpetrated the act purposely and maliciously ; 2, with intent
to kill; and 3, without deliberation or premeditation. If you are not satisfied of the con-
currence of these facts, you should acquit him of murder in the second degree, and will
be under the necessity of examining further." State v. Turner, Wright, 2Q; State v.
Town, Wright, 75 ; State v. Gardiner, Wright, 392.
To constitute the crime of murder in the first degree, when the purpose to maliciously
kill, with premeditation and deliberation, is found, the leno^th of time between the design
so formed and its execution, is immaterial. Shoemoher v. State, 12 Stanton, 43.
If the jury do not in a murder case specify in their verdict whether they find the pri.
454^" HISTORIA PLACITORUM CORONA.
soner guilty of murder in the first or second degree, or of manslaughter, the court will
refuse to pass sentence, and award a new trial, even if not asked for. State v. Town,
Wright, 75.
In Kentucky, a statute was passed in 1801, 2 Morehead S^ Brown, 1267, by which a
similar distinction was supposed to have been created, but at the next session of the
legislature it was enacted that the former statute should not be so construed as " in any
way to alter or cliange the idea of murder, as it stands at common law." Ibid. 1281.
See Wharton's Am. Cr. L. p. 287-292, where most of the statutes and cases are col-
lected.
[ 455 ] CHAPTER XXXVII.j
CONCERNING MURDER BY MALICE IMPLIED PRESUMPTIVE, OR MALICE
IN LAW.
I HAVE before distinguished malice implied into these kinds : 1. When
the homicide is voluntarily committed without provocation. 2. When
done upon an officer or minister of justice. 3. When done by a per-
son, that intends a theft or burglary, &c.
1. Therefore touching the former of these.
When one voluntarily kills another without any provocation, it is
murder, for the law presumes it to be malicious, and that he is hoslis
humaiii genet-is ;[1] it remains therefore to be inquired, what is such
[1] The killing being proved, the inference is, that it was malicious, and that the
party is guilty of murder, and it is for the accused to show the circumstances which
justify, extenuate, or excuse the act; and this is accordant with the ordinary rule of
evidence, that the party alleging the afHrmative must prove it — a rule which usually ap-
plies in criminal as in civil cases. Kclyns;, 27, 1 East, P. C. 224, 340; 4 Bl. Com. 20i;
Roscoe Cr. Ev. (2tZ ed.) 20; The King v.^Onelij, 2 Ld. Ray. 149.3, and 2 Strange, 773;
Mitchell V. The State, 5 Yergcr, 340; Commonwealth v. Knapp, 10 PicA, 484 ; Kespub.
lica V. Mulatto Bob, 4 Dallas, 146; Mackalley's case, 9 Co. 67 h; Mavgridge^s case,
Kelyn<r, HO; Hollowaye^s case. Palm. 545; Cro. Car. 131; Bac. Ab. Murder, C. 2',
2 McNally, 546; 2 Starkie Ev. 948; Archbold, Cr. Pi. 212, 213; 3 Chitty., Cr,
Z. (4 Am. Ed.) 727; 1 Gabbitt, Cr. L. 455 : Queen v. Kirkham, 8 Car. ^ P. 116-
117; King v. Greenacre, 8 Car. S( P. 35 ; People v. McLend, 1 Hill, 436 ; State v, ZeU
lers, 2 Halstead, 243; Pennsylvania v. Honeyman, Bell, McFall Sf Lewis, Addison, 148,
161, 250, 282; Commonwealth v. York, 9 Metcalf, 93.
The killing, to be murder, must be committed with malice aforethought; but wherever
it appears that a man killed another, it shall be intended, prima facie, that he did it
maliciously, unless he can make out the contrary, by showing that he did it on a sud-
den provocation, or the like. 1 Hawk.c. 31, s. 32; li. v. Greenacre, 8 C tSf P. 35.
And in general, any formed design of doing mischief may be called malice; and,
therefore, not such killing only as proceeds from premeditated hatred or revenge against
the person killed, but also in many otlicr cases, such as is accompanied with those cir-
cumstances that show the heart to be perversely wicked, is judged to be of malice pre-
pense, and consequently, murder. 2 Hawk. r. 31, s. 18; 2. Str.lfjQ,
For when the law n^ikcs use of the term malice aforethought, as descriptive of the
crime of murder, it is not to be understood in that narrow restrained sense to whieh
the modern use of the word malice is apt to lead one, a principle of malevolence to par-
HISTORIA PLACITORUM CORONA. 455
a provocation, as will take off the presumption of malice in him, that
kills another.
He that wilfully gives poison to another, that hath provoked him
or not, is guilty of wilful murder, the reason is, because it is an act
of deliberation odious in law, and presumes malice. [2]
If .,^. comes to B. and demands a debt of him, or comes to serve
him with a Subpcena ad respondenduin or ad lestijicatidum, and
B. thereupon kills ./?. this is murder, because it is no provocation.
IVatts came along by the shop of Brains, and distorted his mouth,
and smiled at him. Brains kills him, it is murder, for it was no such
ticulars ; for the law by the term malice (malitia) in this instance meaneth, that the
fact hath been attended with such circumstances as are the ordinary symptoms of a
wicked heart, regardless of social duty, and bent upon mischief Fost. 255, 256, 257.
Also, wherever a person in cool blood, by way of revenge, beats another in such a
manner that he afterwards dies thereof, he is guilty of murder, however unwilling he
might have been to have gone so far. 1 Hawk. c.'S\, s. 38.
So where a master or other person in authority, in for o domestico, exceeds the bounds
of moderation in administering correction, and death ensues, it will be manslaughter or
murder according to the circumstances.
A blacksmith struck his servant with a bar of iron by way of correction for im-
proper behaviour, by which he was killed ; held, murder. A woman kicked and
stamped on the belly of her child; ruled the same. Grey^s case, Kel. 64, 65; 1 East,
F. C. 261. Foster 262.
If a man resolve to kill the next person he meets, and do kill him, it is murder,
altliough he knew him not, for it is universal malice. 4 Bl. Com. 400.
Where the act is committed deliberately, and is likely to be attended with dangerous
consequences, the malice requisite to murder will be presumed ; for the law infers that
the natural or probable effects of any act deliberately done, were intended by its actor.
Commonwealth v. Drew, 4 Mass. 391.
Forcing a person to do an act which is likely to produce his death, and which does
produce it, is murder. Rex v. Evans, 1 Russ. C. ».Sf M. 426.
And threats may constitute such force. lb.
He who kills another upon his desire or command, is, in the judgment of the law, as
much a murderer as if he had done it merely of his own head. Rex v. Sawyer, 1 Russ.
C. S( M. 424.
If a man encourages another to murder himself, and is present abetting him wliile
he does so, such person is guilty of murder as principal. If two encourage each
other to murder themselves together, and one does so, but the other fails in the attempt
upon himself, he is a principal in the murder of the other. But if it be uncertain
whether the deceased really killed himself, or whether he came to his death by accident
before the moment when he meant to destroy himself, it will not be murder in either.
Rex V. Dyson, R. Sf R. C. C. 523.
Where a wound is wilfully, and without justifiable cause inflicted, and ultimately
becomes the cause of death, the party who inflicted it is guilty of murder, though life
might have been preserved if the deceased had not refused to submit to a surgical opera-
tion. Reg. v. Holland, 2 M. Sf Rob. 351.
See also Commonwealth v. Drew, 4 JV/flss. 391; Respublica v. Bob, 4 Dallas, 14fi;
Pennsylvania v. Honeyman, Addison, 148; Pennsylvania v. McFall, Addison, 252;
Pennsi/lvania v. Lewis, Addison, 182; Commonwealth v. York,! Boston Late Reporter,
510; State V. Zellers,2 Halstcd, 220; State w. Merrill, 2 Dev.26d; The People v. Mc Lead,
1 Hill, '317; State V. Town, Wright, 15; State v. Turner, Ibid. 20; Woodsides v. The
St^te, 2 Howard Miss. Rep. 656 ; Dexter v. Spear, 4 Mason, 115. ante ch. 36 notes.
\
[2] 1 East, P. C. 225; 4 Bl. Com. 200. (See ante Chapter XXXIII. note.) By Sta.
tute, 1 Vict. c. 85, s. 2, administering poison with intent to murder, though no death
should ensue, is made a capital offence.
455 HISTORIA PLACITORUM CORONA.
provocation as would abate the presumption of malice in the party
killing. M. 42 ^' 43 Ellz. B. R. Brain's case.(«)[3]
If./?, be passing the street, and B. meeting him, (there being con-
venient distance between ^. and the wall,) takes the wall of ..^. and
thereupon ,^. kills him, this is murder; but if B. had justled ./?. this
justling had been a provocation, and would have made it
[]456 ] manslaughter, and so it would be, if .^. riding on the road,
B. had whipt the horse of .^. out of the track, and then ^.
had alighted, and killed B. it had been manslaughter. 17 Car. 1. Z«-
nure's case.
In the case of the lord Morley, IS Car. 2.(b) all the judges met,
and it was agreed by all judges except one, that if ./?. gives slighting
words to B. and thereupon B. immediately kills him, this is murder
in B. and that such words are not in law such a provocation, as will
extenuate the offense into manslaughter, and the statute of 1 Jac.
cap. 8. of stabbing in such a case was but provisional, because the
juries were apt upon any verbal provocation to find the fact to be
manslaughter; but it was there held, that words of menace of bodily
harm would come within the reason of such a provocation, as would
make the offense to be but manslaughter.
And many, who were of opinion, that bare words of slighting,
disdain, or contumely, would not of themselves make such a provo-
cation, as to lessen the crime into manslaughter, yet were of this
opinion, that if Jl. gives indecent language to B. and B. thereupon
strikes ,d. but not mortally, and then ^. strikes ^. again, and then B.
kills td. that this is but manslaughter, for the second stroke made a
new provocation, and so it was but a sudden falling out, and tho B,
gave the first stroke, and after a blow received t'i:om^.,B. gives him
a mortal stroke, this is but manslaughter according to the proverb
the second blow makes the affray ; and this was the opinion of my-^
self and some others.[4]
There was a special verdict found at Neivgate, viz. A. sitting
drinking in an alehouse, B. a woman called him a son of a ivhore^
J2. takes up a broomstaff, and at a distance throws it at her, which
hitting her upon the head kild her, whether this was murder or man-
slaughter was the question in P. 26 Car. 2. it was propounded to all
the judges at Se7jeants-Inn, two questions were named, 1. Whether
bare words, or words of this nature, would amount to such a provo-
cation, as would extenuate the fact into manslaughter ?(c)
2. Admitting it would not in case there had been a striking
[ 457 3 with such an instrument, as necessarily would have caused
death, as stabbing with a sword, or pistolling, yet whether
(a) Cro. Eliz. 778. Kel. 131. (6) Kelyng, 55. (c) See Kcl. 131.
[3] Slate V. Toohey, 2 Rice's Dip;. 104. U. States v. Cornell, 2 Mason, 91. Woodsides v.
Stnte, 2 Howard, Miss. R. 656. Davies v. The State, 2 Humphrey, 437. Coffee v. The
Slate, 3 Yertrer, 288.
[4] 1 Russ. on C. 587. Foster, 205. JR. v. Maugridge, Kel. 128. R. v. Snow, 1 Leach,
151. Reg. V. Smith, 8 C. Sf. F. IGO.
HISTORIA PLACITORUM CORON.^. 457
this striking, that was so improbable to cause death, will not alter
the case; the judges were not unanimous in it; and in respect, that the
consequence of a resolution on either side was great, it was advised
the king should be moved to pardon him; which was accordingly-
done. [5]
Ji. and B. are at some difference, A. bids B. take a pin out of the
sleeve oi vi. intending thereby to take an occasion to strike or wound
B. which B. doth accordingly, and then A. strikes B. whereof he
died; this was ruled murder, 1. Because it was no provocation, when
he did it by the consent oi Ji. 2. Because it appeared to be a ma-
licious and deliberate artifice thereby to take occasion to kill B.
If there be chiding between husband and wife, and the husband
strikes his wife thereupon with a pestle, that she dies presently, it is
murder, and the chiding will not be a provocation to extenuate it to
manslaughter. 43 Eliz. Crompt.fol. 120. a.(c^)[6]
(d) See also Kd. 64.
[5] HdzeVs case, 1 Leach, 368. Twiner^s case, ] Ld. Raymond, 143. Wigg''s case,
1 Leach, 378. R. v. Howlett, 7 C. Sj P. 274. MacklMs case, 7 Lew. 225.
[6] An unwarrantable imprisonment of a man's person has been liolden sufficient
provocation to make a killing, even with a sword, manslaughter only. R. v. Buckner,
Sty. 467. Tlierefore where a constable took a man without warrant, upon a charge
which gave him no authority to do so, and the prisoner ran away, and J. S., who was
with the constable all the time, ran after the prisoner, who, to prevent his being retaken,
killed J. S.; it was holden to be manslaughter only, although, whilst under the charge
of the constable, the prisoner struck the man who gave the charge; because a blow
under the provocation of the illegal arrest would not justify the constable in detaining
him, unless the blow were likely to be followed by dangerous consequences, and formed
a new and distinct ground of detainer. R. v. Curvan, R. &• M. 132 ; see R. v. Thomp-
son, R. Sf M. 88.
So where a creditor placed a man at the chamber door of his debtor, with a sword
drawn to prevent him from escaping, while a bailiff was sent for to arrest him, and
the debtor stabbed the creditor, this was held manslaughter. R. v. Withers, 1 East,
P. C. 233.
There are other instances where slight provocation has been considered as extenuat-
ing the guilt of homicide, upon the ground that the conduct of tlie party killing, upon
Buch provocation, might fairly be attributed to an intention to chastise rather tlian to a
cruel and implacable malice. But it must appear that the punishment was not urged
with brutal violence. Thus, were A. finding a trespasser upon his land, in his passion
beat him, and, unluckily, happened to kill him, it was holden to be manslaughter. Post.
ii. 91. 1 Rvss. on Crimes, 5t!2.
So where a person, whose pocket has been picked, encouraged by a mob, threw the
pick-pocket into a pond, for the purpose of ducking him, but he was unfortunately
drowned : this was holden to be manslaughter. R. v. Ray, 1 East, P. C. 236.
It seems to be agreed, that no breach of a man's word or promise, no trespass either
to lands or goods, no affront by bare words or gestures, however false or malicious it
may be, and aggravated with the most provoking circumstances, will excuse him from
being guilty of murder, who is so far transported thereby as immediately to attack the
person who offends him in such a manner as manifestly endangers his life, without
giving him time to put himself upon his guard; if he kills him in pursuance of
such an assault, whether the person slain did at all fight in his defence or not, for
80 base and cruel a revenge cannot have too severe a construction. 1 Hawk. c. 31.
s. 33.
Nor can any provocation whatever render homicide justifiable, or even excusable; tlie
VOL. I. 41
457 HISTORIA PLACITORUM CORONA.
II. The second kiud of malice implied is, when a minister of jus-
tice, as a bailift', constable, or watchman, S,'C. is killed in the execu-
tion of his office, in such a case it is murder.
If the sheriff's baihff comes to execute a process, but hath not a
least it can amount to is manslaughter. If a man kill another suddenly, without any, or
without a considerable provocation, the law implies malice, and the homicide is murder;
but it" the provocation were great, and such as must have greatly provoked him, the kill-
ing is manslaughter only. Kel. 135. Fust. 290.
If a man pull another's nose, or offer him any other great personal indignity, and the
otiier thereupon immediately kill him, it is manslaughter only. Kel. 135. 4 Bl. Com. 191.
But slight provocation even by a blow will not extenuate the crime where the revenge ia
disproportioned to the injury, or outrageous and barbarous in its nature; as, if a man,
upon being gently pushed by a policeman to make him move on when causing an
obstruction, kill him, this is murder. Reg- v. Hagan, b C. Sf P. 167. See also Sted-
marCs case, Fost. 292. R. v. Lynch, 5 C. Sf P. 324.
So, if a father see another person in the act of committing an unnatural crime with
his son, and instantly kill him, it is manslaughter only ; but if, hearing of it, he go in
quest of the party and kill him, it is murder. Reg. v. Fisher, 8 C. 6f Pr 182. See Fos-
ter, 189.
Semble, if A. kill B. under provocation of a blow not sufficiently violent in itself to
render the killing manslaughter, but the blow be accompanied by very aggravating
words and gestures, that will be but manslaughter in A. Reg. v. Sherwood, 1 Car. ^
K. 556.
In a case where there had been mutual blows, and then upon one of the parties
being pushed down on the ground, the other stamped upon his stomach and belly with
great force, and thereby killed him, it was considered only to be manslaughter. Rex v.
Ayes, 1 Russ. C. Sf M. 496; R. Sf R. C. C. 166. But' in the case of Rex v. Thorpe,
1 Lewin C. C, Bailey, J. intimated that death caused by vp-and-down fighting would
be murder.
In the case of death by stabbing, if the jury are of opinion that the wound was
inflicted by the prisoner while smarting under a provocation, so recent and so strong
tliat the prisoner may be considered as not being at the moment master of his own
understanding, the offente will be manslaughter; but if there had been, after the provo-
cation, sufficient time for the blood to cool, for reason to resume its seat, bclore the
mortal wound was given, the offence will amount to murder; and if the prisoner display
thought, contrivance, and design in the n)odc of possessing himself of the weapon,
and in again replacing it immediately after the blow was struck, such exercise of
contrivance and design denotes rather the presence of judgment and reason than of
violent and ungovernable passion. Per Tindal, C, J. Rex v. Hayward, 6 Car. ^ P.
157.
It was held to be no excuse for killing a man who was out at night dressed in white
as a ghost, for the purpose of frightening the neighbourhood, that he could not otlierwise
be taken. Rex v. S7iiilh, 1 Russ. C. 6f M. 459.
Where the prisoner, who was a butcher, had employed the deceased, a shepherd boy,
to tend some sheep which were penned, and he had negligently suffered some of them
to escape through the hurdles ; and the prisoner, upon seeing it, ran towards the boy,
and taking up a stake which was lying on the ground, threw it at him, and inflicted
an injury of which he died : Held, that under the circumstances it was a question for
the jury whether it was murder or manslaughter; they found the latter. Rex v. Wiggg,
] Leach, C. C. 379.
As an assault, though illegal, will not reduce the crime of the party killing the person
assaulting him to manslaughter, when the revenge is dispropprtionate and barbarous,
much less will such jiersdual restraint and coercion as one man may lawfully use to-
wards another form any ground of extenuation. Rex v. Willoiishby, 1 Russ. C. ^ M.
437; 1 East, P. C. 288. And see Rex. v. Steudmtjn, 1 East, P. C. 2"34 ; Rex v. Nailor,
1 E<ist, P. C. 217; Rex v. MiUon, 1 E'jst, P. C. 411.
If A. stands with an offensive vvcajjdn in the doorway of a room, wrongfully to pre-
vent J. IS. from leaving it, and others from entering, and C, who has a right in the room,
HISTORIA PLACITORUM CORONiE. 457
lawful warrant, as if the name of the bailiff, plaintiff, or defendant he
interlined or inserted after the sealing thereof by the bailiff himself,
or any other, if such bailiff be killed, it is but manslaughter, and not
murder.
But if a process issuing out of a court of record to a Serjeant at
mace, sheriff, or other minister, be erroneous, as if a Capias issue,
when OiDistruiffas should issue, yet the killing of*such a minister in
the execution of that process is murder, altho he execute the process
in the night, (e) or upon a Sunday. {/) Mackally^s case, 9 Co. Rep.
68. a.
But if the process be executed out of the jurisdiction of
the court, the killing of the minister is only manslaughter, [458 3
and so it is, if the issuing of the process were void, and co-
ram nonjudice.
A bailiff or officer/Mr?/^ 8; conns may arrest a man without show-
ing his warrant, (^) and a private bailiff need not show his warrant
upon the arrest, till the party arrested demand it, and therefore, if the
party arrested kill a bailiff upon the arrest without such a warrant
(e) 9 Co. 66. a.
(/) 9 Co. 66. 6. for ministerial acts might lawfully be executed upon a Sunday, but
since our author wrote, the law is altered in this respect; for by 29 Car. 2. cap. 7. all
process, warrants, Sfc. served or executed on a Sunday are void, except in cases of trea-
son, felony, or breach of the peace, so that now, an officer arresting a man upon a war-
rant on a Sunday is, as if he had him arrested without any warrant at all.
(g) The the party do demand it; this is intended of the warrant constituting him
bailiff; but as to the writ or process against the party, there is no difference be-
tween a public or a private bailiff, for in either case, if the party submit to the arrest,
and do demand it, he is bound to shew at whose suit, for what cause, out of what
court the process issues, and when and where returnable. 5 Co. 54. a. 9 Co.
69. a.
struggles with him to get his weapon from him, upon which D , a comrade of A., stabs
C, it will be murder in D. if C. dies. Rex v. Longden, R. Se R. C, C228; 1 Russ.
C Sf M. 439.
A bare trespass against the property of another, not his dwelling-house, is not a
sufficient provocation to warrant the owner in using a deadly weapon in its defence;
and if he do, and with it kill the trespasser, it will be murder. If tiie beating, however,
be with an instrument, and in a manner not likely to kill, it will be no more than man-
slaughter. So, if any one, under colour or claim of legal authority, unlawfully arrest,
or actually attempt or offer to arrest another, and this latter in his resistance kills the
aggressor, it will be no more than manslaughter. So if one, not a stranger, aids the
injured party by endeavouring to rescue him, or to prevent an unlawful arrest wliea
actually attempted. Commonwealth v. Drew, 4 Mnss. 391.
See Woodhead's case, 1 Lewin, 163; Cro. Eliz. 778; Kel. 131; Langstaff's case,
1 Lewin, 1 62 ; State v. Yarborovgh, 1 Hawks, (iV. C.) Rep. 78 ; Slate v. Tachet, iliid. 210 ;
Allen V. The State, 5 Yerger, 423; State v. Ford, 1 Spears, 146; Jacob v. The State,
1 Humphrey, 493; State v. Piver, 2 Haywood, R. 29; State v. Mors'in, 3 Iredell, 136;
Slate V. Ferguson, 2 Hill, 619 ; Slaughter v. The Commonwealth, 11 Leigh, 681; State v.
McCarty, 1 Spears, 384.
Among equals the general rule is, that words are not, but blows are a sufficient
provocalion ; yet tliere may be words of reproach so aggravating when uttered by a
slave; as to excite in the white man the temporary fury, which negatives the charge of
malice. Slate v. Jarrott, 1 Iredell, 76.
458 HISTORIA PLACITORUM CORONA.
shewn, it is murder, and so it is, if a serjeant at mace makes the ar-
rest without showing his mace, ibidem Mackally'' s case.(A)
A bailiff J?<r?«.s <§' conns had a warrant to arrest Peiv upon a Ca-
pias, and came to arrest him, not using any words of arrest, Pew
said. Stand off, I know you ivell enough, come at your peril, the
baihff takes hold of him, Pew thrusts him through; it was ruled mur-
der, tho he used no words of arrest, nor showed his warrant, for pos-
sibly he had not time. P. 6 Car, I. B. R.{i)
A bailiff having a warrant to arrest Cook upon a Capias ad satis-
faciendum, came to Cook's house, and gave iiim notice. Cook me-
naceth to shoot him if he depart not, yet the bailiff departs not, but
breaks open the window to make the arrest, Cook shoots him, and
kills hinij it was ruled, 1. That it is not murder, because he cannot
break the house, (>t) otherwise it had been, if it had been upon an
Habere facias possessionem, (l) 2. But it was manslaughter, because
he knew him to be a bailiff. But 3. Had he not known him to be a
bailiff, or one that came upon that business, it had been no felony,
because done in defense of his house. P. 15. Car. B. JR.{m)
But if a sheriff enter the house by the outward door open, he or
his bailiff may break open the inward doors, tho the process
r459 ] be without a Non omittas, and therefore the killing of him
in such case is murder. Af. 17. Jac. B. R. White and JVilt-
shire.(n)
If the sheriff or bailiff have once laid hands upon the prisoner, and
so began his execution, he may break open the outward doors to
take him, Sir William Fishers csLse,{o) and if the warrant be directed
to five bailiffsjtwo or three may make execution; resolved in White's
case, ubi supra.
Upon a warrant against a felon, or one that hath dangerously
wounded another, or for surety of the peace, or good behaviour, the
constable may break open the door where the offender is, Dalt. cap^
78. (p) and so may the sheriff or his bailifi' upon a Capias ntlega-
ium, Capias pro fine, or other process for the king, if not opened
upon demand.
The constable of the vill of .^. comes into the vill of B. to sup-
press some disorder, and in the tumult the constable is kild in the vill
of B. this is only manslaughter, because he had no authority in B.
as constable.
But it seems, that if the constable of the vill of ^. had a particu-
lar precept from a justice of peace directed to him by name, or by
the name of the constable of J^. to suppress a riot in the vill of B. or
to apprehend a person in the vill of B. for some misdemeanor, and
within the jurisdiction and conusance of the juslice of peace, and in
pursuance of that warrant he go to arrest the party in B. and in exe-
cution of his warrant is killed in B. this is murder ; for tho, in such
(A) 9 Co. 69. a. (m) Cro. Car. 537. W. Jones, 420.
(i) Cro. Car. 183. («) I'almer 5-2.
(k) 5 Co. 92. 6. Semayne's case. . (o) Cited in White's case, Palmer 53.
(/) 5 Co. 91. b. {!>) New Edit. cap. 121. p. 426.
HISTORIA PLACITORUM CORONA. 459
case, it seems the constable was not bound to execute the warrant
out of his jurisdiction, neither could he do it singly virtute officii, as
constable of A. yet he may do it as baihff or minister by virtue of
the warrant, artd the kilHn§ of him is murder, as well as if he had
been constable of the hundred wherein J2. and B. lie, or sheriff of
the county ; for a justice of peace may for a matter within his juris-
diction issue his warrant to a private person, as servant ; but then
such person must shew his warrant, or signify the contents of it.
14 H. 8. 16. a.
And altho the warrant of the justice be not in strictness
lawful, as if it express not the cause particularly enough, [460]
yet if the matter be withiti hisjurisdiction as justice of peace,
the killing of such officer in execution of his warrant is murder; for
in such case the officer cannot dispute the validity of the warrant, if
it be under seal of the justice. 14 H. 8. 16.
If A. and B. are constables of the vill of C. and there happens a
riot or quarrel between several persons, Ji. joins with one party, and
commands the adverse party to keep the peace, B. joins with the
other party, and in like manner commands the adverse party to keep
the peace, and the assistants and party of A. in the tumult kill B. it.
seems that this is but manslaughter, and not murder, in as much as
the officers and their assistants were one engaged against the other,
and each had as much authority as the other.
But if the sheriff having a writ of Habere facias possessionem
against the house and lands of A. and */i. pretending it to be a riot
upon him, gain the constable of the vili to assist him, and to suppress
the sheriff or his baihffs, and in the conflict the constable is killed,
this is not so much as manslaughter ; but if any of the sheriff's offi-
cers were killed, it is murder, because the constable had no authority
to encounter the sheriff's proceeding or acting by virtue of the king's
writ.
If a constable, or tithing-man, or watchman be in execution of his
office, and be killed, it is murder; and in all cases of implied malice,
or malice in. law, the indictment need not be special, but general ex
malitiu sua prsecogitatd interfecit tS* murdravit, and the malice in
law maintains the indictmant. 9 Co. Rep. 68. Mackally^s case.
But now toucliing the point of notice.
1. It is not necessary to make it murder, that the party killing
know the person of the bailiff, constable, or watchman.
2. If he be a h-d^xW'S. jurus cS* conns, it seems there is no necessity
for him to notify himself to be such by express words, but it shall be
;)resumed that the offender knew him, as it seems by the book 9 Co.
Bep. 69. b. Mdckally^s case ; qusere.
3. But if it be a private baililf, either the party must know
that he is so, as in Pew\s case before, or there must be some [ 461 ]
such notific»ation thereof, whereby the party may know it,
as by saying, / an-est you, which is of itself sufficient notice, and
it is at the peril of the party, if he kill him after these words, or
words to that effect pronounced, for it is murder, if de facio it
461 HISTORIA PLACITORUM CORONA.
falls out, that he were a bailiff, and had a warrant. 9 Co. Rep. iibi
4. A constable coming to appease a sudden afTray in the day time
in the village, whereof he is constable, it seems every man e.r officio
is bound to take notice that he is the constable, because he is to be
chosen and sworn in the leet, where all resiants are to attend, 4 Co.
Rep. 40. b. Youns;''s case \{q) but it is not so in the night-time, unless
there be some notification, that he is the constable.
5. But whether it be in the day or night, it is sufficient notice, if
he declare himself to be the constable, or command the peace in
king's name, and the like for any that come in his assistance, or for
a watchman, &c. and therefore, if any of them are killed after such a
notification, it is murder in them that kill him. 9 Co. Rep. 68. b.
Mackalhfs case.
And these dijTerences may be collected out of the books, 4 Co.
Rep. 40. YoiiJig^s case. '» Et en cest case fuit tenus per totani cu-
riam, que si sur affray fait le constable and autres en son assist-
ance veignont a suppresser le affray & a preserver le peace, & en
fesant lour office le constable ou ascun de ses assistants spit tue, ceo
est murder en ley, coment que le murderer ne scavoit le party, que
fuit tue, & coment que le affray fuit sodein, pur ceo que le con-
stable & ses assistants veigne per authoritie del ley pur le garder
del peace & a preventer le danger, que poit ensuer per le infreinder
de ceo, & pur ceo le ley adjudgera ceo murder, & que le murderer
avoit malice prepense, pur ceo, que il oppose luy mesme enconter
le justice del realme, & issint de le viscont, ou son bailili^,
[ 462 ] ou watchman en fesant son office." And 9 Co. Rep. 69.
Mackally''s case, where it was objected, that the serjeant
at mace did not show his mace, whereby the offender might know
him to be an officer; yet it was ruled, that the killing of him was
murder, 1. Because it was found, that he was serviens ad clavam,
juratvs 4* cognitufi, and a hdiW'i^ ju7ms 8^- conns need not show his.
warrant, tho demanded, nor another bailiff without demand ; and
when the books speak of ?ih^'\\\Q jurus <§• conus, it is not necessary
that he be known to the party arrested, but it is sufficient if he be
commonly known. 2. " Si notice fuit requisite il done sufficient
notice, quant il dit jeo toy arrest in le nosme le roy, cVc. Et le
party a son peril doit luy obeyer, & sil nad loyall garrant, il poit
aver son action de faux imprisonment, issint que in cest case sans
question le serjant ne besoigne a monstrc son mace, car sils serra
chase a monstre lour mace, ceo serra warning al party destre arrest
a fuer.
H. 24 (5' 25 Car. 2. A groat number of persons assembled in a
house called Sissinghurst iu Kent, issued out and committed a great
riot and battery upon the possessors of the wood adjacent. One of
•
' (5) The reason here pivcn by our author is not mentioned in tliivS case, but it is tljere
held, that a person's acting as constable is a sufficient notification, altho the party do not
otherwise know him to be so.
HISTORTA PLACITORUM CORONA. 462
their names, viz. A. was known, the rest were not known ; a war-
rant was obtain'd from a justice of peace to apprehend the said Jl.
and divers other persons unknown, which were all together in Sis-
smghnrst-fiouse. The constable, with abont sixteen or twenty
called to his assistance, came with the warrant to the house, and
demanded entrance, and acquainted some of the persons within,
that he was the constable, and came with tlie justice's warrant, and
demanded A. with the rest of the offenders, that were then in the
house, and one of the persons within came and read the warrant,
but denied admission to the constable, or to deliver A. or any of the
malefactors, but going in commanded the rest of the company to
stand to their staves: the constable and his assistants fearing mis-
chief went away, and being about five rod from the door, B. C. D.
E. F. 6,'c. about fourteen in number, issued out and pursued the
constable and his assistants; the constable commanded the peace,
yet they fell on and kild one of the assistants of the con-
stable, and wounded others, and then retired into the house [ 463 J
to the rest of their company, which were in the house,
whereof the said A. and one G. that read the warrant, were two,
for which the said A. B. C. D. E. F. G. and divers others were in-
dicted of murder, and tried at the king's bench bar, wherein these
points were unanimously agreed.
1. That altho the indictment were, that B. gave the stroke, and
th^ rest were preseut, aiding and assisting, tho in truth C. gave the
stroke, or that it did not appear upon the evidence, which of them
gave the stroke, but only that it was given by one of the rioters, yet
that evidence was sufficient to maintain the indictment, for in law it
was the stroke of all that party, according to the resolution in
MackaUy\^ case, 9 Co. Rep. 67. b.
2. That in this case all, that were present and assisting to the
rioters, were guilty of the death of the party slain, tho they did not
all actually strike liim, or any of the constable's company.
3. Thai those within the house, if they abetted or counselled this
riot, were in law present, aiding, and assisting, and principals as
well as those that issued out and actually coiumitted the assault,
for it was but within five rod of the house, and in view thereof,
and all done as it were in the same instant ; vide lord Dacre's case
before.
4. That here was sufficient notice, that it was the constable
before the man was killed, 1. Because he was constable of tlie
same vill. 2. Because he notified his business at the door before
the assault, viz. that he came with the justice's warrant. 3. Be-
cause after his retreat, and before the man slain, the constable com-
manded the peace, and notwithstanding it, tiie rioters fell on, and
kild the party.
5. It was4-esolved, that the killing of the assistant of the constable
was murder, as well as the killing of the constable himself.
6. That those, that came in the assistance of the constable, tho not
463 HISTORIA PLACITORUM CORONA.
specially called thereunto, are under the same protection as they that
are called to his assistance by name.
7, That altho the constable retired with his company upon the not
delivering up of .^. yet the killing of the assistant of the con-
["4643 stable in that retreat was murder. 1. Because it was one
continued act in the pursuance of his office, his retiring was
as necessary, when he could not attain the effect of his warrant, and
was in effect a continuation of the execution of his office, and under
the same protection of the law, as his coming was. 2. Principally,
because the constable in the beginning of the assault, and before the
man was stricken, commanded the peace, and is all one with
Yunge''s case.
8. It seems, that tho the constable had not commanded the peace,
yet when he and his company came about what the law allowd
them, and, when they could not effect it fairly, were going their way,
that the rioters pursuing them, and killing one, was murder in them
all, because it was done without provocation, for they were peace-
ably retiring ; but this point was not stood upon, because there was
enough upon the former point to convict the offenders, and in the
conclusion the jury found nine of them guilty, and acquitted those
within, not because they were absent, but because there was no
clear evidence, thattliey consented to the assault, as the jury thought,
and thereupon judgment was given against the nine to be hanged:
and note, that the award was for the marshal to do execution, be-
cause they were remanded to the custody of the marshal, and he is
the immediate officer of the court, and precedents in cases of judg-
ment given in the king's bench have commonly run, Et dictum
est 7narescallo, 4'C. qnod faciat executionem periculo incu7nbente.{r)
At Newgate in Lent vacation, 26 Car. 2. the case was thus : five
persons committed a robbery about Hoxinslow-heath in Middlesex,
viz. Jackson and four others, the party robbed raised hue and cry,
the country pursued them, and at Hampstead Jackson one of the
five turned upon his pursuers, the rest being in the same field, and
having often resisted the pursuers, and refusing to yield, killd one
of the pursuers, by five judges then present it was ruled. 1. That
this was murder, because the country, upon hue and cry levied, are
authorized by law to pursue and apprehend the malefactors; and ia
this case here was a felony done, and a felony done by those per-
sons, that were thus pursued. 2. Tliat altho there was no warrant
of a justice of peace to raise hue and cry, and tho there was no con-
stable in the pursuit, yet the hue andcrywas a good warrant in law
(r) And thus it was in the case of the Althoes, T. 9. Geo. I. B. R. who were convicted
of a barbarous jiiurdcr in Pemhroknshirc, at Hertford assizes, being the next English
county ; the indictment was removed by Certiorari into the iun<r's bench, in order to
arijue some exce[)tions, which were over-ruled; and after some question made, whetlier
tlicy ought not to be sent back to llerefiyrdshire to receive sentence there, the court was
of opinion, that they had the same jurisdietion over facts committed in Wa/*s, ijs if corh-
mitt( d iti the next adjacent county in JCiifrtand, and so they were sentenced at the king^s
bench, and were executed by the marshal at Kenninglon gallows near Southwark.
HISTORIA PLACITORUM CORONA. 465
for them to apprehend the offenders, and the kiUing of any of the
pnrsuants by Jackson was murder. 3. In as much as all of the rob-
bers were of a company, and made a common resistance, and so one
animated the other, all those of the company of the robbers that
were in the same field, tho at a distance from Jackson, were all prin-
cipals, viz. present, aiding, and abetting. 4. That when one of the
maletactors was apprehended a little before the party was hurt, /hat
person being in custody when the stroke was given was not guilty,
unless it could be proved, that after he was apprehended he had
animated Jackson to kill the party : they had all judgment of death
for the robbery, and four of them for the murder.
A press-master seised B. for a soldier, and with the assistance of
C. laid hold on him. D. finding fault with the rudeness of C. there
grew a quarrel between them, and D. killed C. By the advice of
all the judges, except very few, it was ruled, that this was but man-
slaughter, 17 Car. 2.(5)[7]
(s) HuggeVs case, 25 April 1666. at Newgate, Kel. 59. 137.
[7] If therefore upon an affray, the constable, or otliers in his assistance, come to sup-
press the affray and preserve the peace, and in executing tlieir otfice the constable or any
of his assistants are killed, it is murder in law; although the murderer knew not the party
that was killed, and although the affray was sudden because the constable and his assist-
ants came by authority of law to keep the peace, and prevent the danger wiiich might
ensue by the breach of it; and, therefore, the law will adjudge it murder, and that the
murderer had malice prepense, because he set himself against the justice of the realm;
Cases of Appeals and Indictments, 4 Co. 40. This rule is not confined to the instant the
officer is upon the spot, and at the scene of action, engaged in the business tliat brought
him thither; for he is under the same protection of the law eundo,morundo, ei redeundo:
and therefore if he come to do his office, and meeting with great opposition, retire and be
killed in the retreat, this will amount to murder; as he went in obedience to the law and
in the execution of his office, and his retreat was necessary in order to avoid the danger
by which he was threatened; and upon the same principle, if he meet with opposition by
the way, and be killed before he come to the place, such opposition being intended to
prevent his doing his duty, (which is a fact to be collected from circumstances appearing
in evidence,) this likewise will amount to murder. 1 Russ. on Crimes, 532. Fost. 308,
309. 4 Penn. Law Jour. 29. Charge of King, P., to Grand Jury, Oyer and Terminer,
Philadelphia, 1S44. See chap. 40, notes.
A policeman is entitled to the same protection in the execution of his duty as a con-
stable, and if he is killed, while so engaged, it will be murder. Where, therefore, a police-
man, between eleven and twelve o'clock at night, was called upon to clear a beer-house,
which he did, and then went into the street, where the prisoner and many others were
standing near the door, when the prisoner, upon being requested, refused to go home,
and used very abusive and violent language, and the policeman laid his hand on his
shoulder gently, and told him to go away, on which the prisoner immediately stabbed
him with a knife in the throat;" it was held that if the pi>liceman had died, this would have
been murder. The case would not have been altered had the policeman, without 1 emg
called upon, gone in of his own accord upon hearing any noise at such a time of night;
as thereby he would not only have acted within the Ime of his duty, but have been guilty
of a breach of it had he done otherwise; and in this case, any blow given after the above
occurrences, with a cutting instrument, would be precisely the same as if it had beeri
given witliout any thing having been done by the policeman. Rex v. Herns, 1 C ^ P.
312. So when a policeman saw the prisoner playing the bagpipes, in a street, at half
past eleven o'clock at night, by which he collected a large crowd round him, among
whom were prostitutes and thieves, and the policeman told him he could not be allowed
to play at that time of night, and he must go on, but he said he would be damned if he
would, and the policeman took hold of him by the shoulder, and slightly pushed him, on
which the prisoner wounded him with a razor; it was held that if the prisoner was col-
465 HISTORIA PLACITORUM CORONA.
III. The third kind of malice implied is in relation to the person
kiUing.
\i A. come to rob B. in his house, or upon the highway, or oth^r-
lectinor a crowd of persons al tliat time of night, and the policeman desired him to go on,
and laid his hand upon Jiis shoulder with that view only, he did not exceed liis duty, and
if the prisoner then wounded him, it would have been murder if he had died; but if the
policeman gave the prisoner a blow and knocked him down, he was not justified in so
doing. Reg. v. Hagan, 8 C. 4-. F. 167.
It is a general rule that, when persons have authority to arrest or imprison, and using
the proper means for that purpose, are resisted in so doing, and killed, it will be mur-
der in all who take part in such resistance. Foster, 270. But three things are to be
attended to in matters of this kind; the legality of the deceased's authority, the legality
of the niamier in which he executed it, and the defendant's knowledge of that authority;
for if an officer be killed in attempting to execute a writ or warrant invalid on the face
of it, (or if issued with a blank in it and the blank afterwards filled up; or if issued with
an insufficient description of the defendant. 1 East. P. C 310. Hoiisin v. Barrow, 6 T.
R. 122. Rex v. Wimcick, 8 T. R. 454 ; Rex v. Hood, 1 Moudy, C. C. 81 ;) or against a
wrong person, or out of the district in which alone it could legally be executed ; or if a
private person interfere and act in a case where lie has no authority by law to do so; or
if the defendant have no knowledge of the officer's business, or of the intention with
which a private person interferes, and the officer or private person be resisted or killed ;
the killing will be manslaughter only. Jerv. Arch. Crim. Law, 9th ed. 429. But when
any officer is in the legal execution of" his duty, or a private person endeavouring to sup-
press an affray, or apprehend a felon, and is resisted and killed ; if it appear that the
slayer knew the officer's business or the intent of the private person, either expressly from
the deceased, or impliedly from the circumstances, {R, v. Howarth, 1 Mood, C. C. 207,)
the killing is murder; if it appear he was ignorant in this respect, it is manslaughter only.
1 Hawk. c. 31. ss. 49, 50; Fast. 310. So if a constable having a charge of felony against
a defendant, take him without a warrant, and the defendant, knowing the constable, kill
him, it will be murder, even though the constable do not tell him of the charge, and the
defendant, in fact, has done nothing for which he is liable to be arrested. R. v. Woolmer,
R. 4- M. C. C. 334.
If a constable show his staff of office, this, it seems, is a sufficient intimation of his
authority. Post. 311. And in such a case it is not necessary to prove the deceased's
appointment as constable; proof that he was accustomed to act as constable is sufficient.
1 East, P. C. 315. But private persons, when they interfere, must expressly intiihate
their intention, otherwise killing them will be manslaughter only. Foster, 310, 311. An
officer is justified in arresting on a charge of felony, though the charge does not in
terms specify all the particulars necessary to constitute the felony. Rex v. Ford, R. S(
R. 329, But where a constable attempted to arrest a man while in a privy, without ariy
charge having been made against him, but upon a simple direction to take him; where-
upon the man immediately stabbed the constable; it was holden, by a majority of the
judges, that, as the actual arrest would have been illegal, the attempt to arrest when the
defendant was in such a situation that he could not get away, and when the waiting to
give notice miglit have enabled the constable to make the arrest, was such a provocation
as reduced the ofience to manslaughter only. Rex v. Thompson, R. 6f M. 80. A consta-
ble who had verbal orders from the magistrates to apprehend all thiinble-riggers, at-
tempted to apprehend the defendant and iiis companions, who were playing at thimble-
rig, in a public fair, and succeeded in apprehending one of his companions, whotn the
defendant rescued, and afterwards, in the evening, seeing the defendant in a public house,
endeavoured to apprehend him, telling that he did so for what he had been doing in the
fair; the defendant escaped into a [>rivy, and the constable calling others to his assistance,
broke open tiie l)rivy and attempted to apprehend the prisoner, who stabbed one of the
party; a conviction for feloniously cutting and maiming was held wrong. R. v. Gard-
ner, 1 Mood. C. C. 390. A [>olice officer found N. witli potatoes under his shirt,
which had been recently dug from the ground, and apprehended him. The policeman
called O. to assist him : O. did so; and a rescue being attempted, O. was struck by A,
who went away, and O. was afterwards killed by other persons who attempted the res-
cue: — Held by the judges that the police officer had no right to apprehend iV.'and that
the killing of O., tlierefore, did not amount to murder, and that, on an indictment for
niurder, A. could not be cpnvicted of an assault. Reg. v. Phelps, 1 Car, Sf M. 180. If a
HISTORIA PLACITORUM CORON.E. 465
wise, without any precedent intention of killing him, yet if in the
attempt, either without or upon the resistance of B. A. kills B. this
is murder. Co. P. C. p. 52.
constable take a man without warrant, upon a chargfc which gives him no authority to
do so, and the prisoner run away, and is pursued by J. S. who was with the constable all
the time, and charged by him to arrest, and the man kill J. S, it is manslaughter only,
because the arrest was iliegal, and J. S. ought to have known it; and, therelbrc, the at-
tempt to retake the prisoner was illegal also. R. v. Ciirvun, R. ^- M. 132.
If a warrant commanding the arrest of an individual in the name of the State have no
eeal, it is void. If an officer attempt to arrest the party named upon such authority, he
proceeds at his peril, and is a wrong doer; and if he be killed in the attempt bv the
party, the shiycr is guilty of manslaught.er and not murder. Tackete v. The Slate,
3 Yerger, 392.
If any one, under color or claim of authority, unlawfully arrest or actually attempt or
offer to arrest another, and this latter, in liis resistance, kills the aggressor, it will be no
more than manslaughter. Com. v. Drevj, 4 Mass. 39 1 . The same principle applies where
one, not a stranger, aids the injured party by endeavoring to rescue him, or to pre-
vent an unlawful arrest, when actually attempted. Ibid.; and see U. S. v. Trovers, per
Story, J. 2 Wlieeler''s C. C. 509. Where an affray had taken place, and a quarterly ser-
geant appeared and ordered the wranglers to desist, and on their not doing so, reported
to the orderly Serjeant, who called at tlic room, and ordered the persons engaged to the
guard-house, but the prisoner remained behind on some pretence connected with his
clothes, and when the serjeant was temporaril}' absent declared he would be the death of
any one who attempted to take him to the guard-house, retired to a corner of the room
where a number of unloaded muskets had been left, loaded one, and when the serjeant
entered, with another, accosted him, ''Stand off; if you approach, I will take your life."
He immediately afterwards fired, and mortally wounded the sergeant and his companion.
The case depended on the question whether or no at the time the defendant was legally
liable to arrest, and the court. Story, J. and Davis, J., charged the jury if such was the
case, the offence was manslangiiter, if otherwise, murder. 2 Wheeler''s C. C. 405.
Where an officer of a British ship of war, in the year 1769, attempted, without a speci;il
warrant, to impress several seamen in a., Massachusetts merchant vessel, and was killed
in the attempt, it was held but manslaughter, the deceased acting without authority.
Case of the Crew of the Pitt packet, 4 Boston Law Reporter, 369. \yharton''s Atn, C. L.
236.
If a person be impressed who is not a proper object of impressment, or if the impress-
ment be made without any legal warrant, it is lawful for the party to make resistance;
and if the death of any of the parties concerned ensue, it is murder. Rex v. Dixon,
1 East, P. C. 313. R. Sf R. C. C. 53. Rex. v. Rokeby, I East, P. C. 312.
But if a seaman be impressed, and the pressgang be resisted, and any of them be
killed ; if the pressgang at the time were under the direction of a commissioned officer,
and such officer were then acting with them, the killing would be murder, otherwise but
manslaughter. R. v. Broad foot. Fast. 154.
A special constable duly appointed under the statute 1^2 Will. IV. c. 41. is appointed
for an indefinite time, and retains all the authority of a constable at common law, until
his services are suspended or determined under the 9th section of that statute. Reg. v.
Porter, 9 C. ^ P. 778.
In all cases where the outer door of a dwelling-house may be broken open in order
to execute process, there must be a demand of admittance, or something equivalent
thereto, and a refusal. Fast. 320. 136; see Hancock v. Brown, 2 B. <^- Aid. 592. otherwise
if the officer be killed, it will be manslaughter only. Arch. Cr. Law, by Jervis, 434, 9th ed.
In all cases, however, above stated to be manslaughter only, if there be evidence of
express malice in the party killing, the homicide will be murder. R, v. Stocklcy, 1 East,
P. C. 310. R. v. Curtis, Fast. 135. ■
With respect to private persons using their endeavours to bring felons to justice, it
should be observed by way of caution, that they must be careful to ascertain, in the first
instance, that a felony has actually been committed, and that it has been committed by
the person whom they would pursue and arrest. For if no felony has been committed,
no suspicion, however well founded, will bring the person so interposing within tiie espe-
cial protection of the law, Cro. Jac. 194. 2 Inst. 32. 172. nor will it be extended to
465 HISTORIA PLACITORUM CORONA.
So if men come to steal deer in a park or forest, or to rob a war-
ren of conies, and the paricer, forester, or warrener resists and is
killed, this is murder ; the lord Bacre^s case. [8]
If a prisoner die by reason of duress and hard usage
[ 466 2 by the gaoler, it is murder in the gaoler. Co. P. C.
p. 52. [9]
those who, when a felony has actually been committed, upon suspicion possibly well
founded, pursue and arrest the wrong person. Fost. 318. But the law is otherwise in
the case of an officer acting in pursuance of a warrant. 1 Russ. on Cr. 534. And per
Lord Tenterden, C. J., Beckwith v. Philby, 6 B. Sf C. 638. " There is this distinction
between a private individual and a constable; in order to justify the former in causing
the imprisonment of a person, he must not only make out a reasonable ground of sus-
picion, but he must prove that a felony has actually been committed ; whereas a con-
stable, having reasonable ground to suspect that a felony has been committed, is author-
ized to detain the party suspected until inquiry can be made by the proper authorities."
If an innocent person be indicted for a felony, and an attempt be made to arrest him
for it, .without warrant, and he resist and kill the party attempting to arrest him ; if the
party attempting the arrest were a constable, the killing is murder; 1 Hawk. c. 28. s. 12.
if a private person, manslaughter ; because the constable has authority by law to arrest
in such a case, but a private person has not. And the same in all cases where a person
is arrested or attempted to be arrested upon a reasonable suspicion of felony. Samuel
V. Payne, Doug^. 359.
But a private {\erson may arrest another whom he sees attempting to commit a
felony, and if he be killed in the attempt, it will be murder. 2 Hawk. c. 12, s. 19.
Where one interferes to stop a brawl, and exercises no other force than is necessary
for the object, having previously announced his purpose, the killing of him by one of the
assailants will be murder. Thus, when A., in order to prevent B. from fighting with
his brother, laid hold of him and held him down, striking no blow, upon which B.
stabbed A., it was decided, that if in such case A. did nothing more than was necessary
to prevent B. from beating his brother, tlie killing of him was murder; if otherwise, it
wou'd have been manslaughter only. R. v. Brown, 5 P. Sf C 120.
The prisoner and one VV. engaged in a fight, and were separated by the deceased.
Some time after the fight was renewed, and the deceased again interfered, but being
unable to take the prisoner off, called a negro to his assistance, who, in the act of sepa.
rating the combatants, threw the prisoner against the wall. The prisoner then made at
the deceased (who endeavoured to avoid him,) with a knife, and inflicted a mortal blow;
it was held that this was a case of murder. State v. Ferguson, 2 Hill, 619.
[8] It is a general principle that, if in the execution of or attempt to execute a
felony, a man kill another, he will be guilty of murder. Thus if C, having malice
against A., strikes at and misses him, but kills B., this is murder in C. 1 East, P. C.
230: or if A. feloniously shoot at the poultry of another, and kill a man, this will be
murder. Fost. 258.
Accidental homicide may be murder, if it happen in the prosecution of any illegal
act; as in carrying away furniture to avoid a distress for rent. Rex v. Hodgson, 1 Leach,
C C. 6; Rex v. Huhson, 1 East, P. C. 258.
On the trial of an indictment for murder, where there is no pretence that the
prisoner killed the deceased, while engaged in a riot or other misdemeanor, not
amounting to a felony, or by misadventure, but the death ensued in consequence of an
intentional violence upon the person of the deceased; whether the prispner designed
to kill or not, he is not entitled to have the jury instructed that they cannot convict of
murder, if they should conic to the conclusion that the mortal wound was inflicted in
comriiilting, or atlempting to comHiit an offbnoo, which of itself is less than a felony.
The People v. Rector, 19 Wen. 569; M. S. Sum. 145, 175, 37. 46; Palm. 546, 2 Roll.
Rep. 120.
[9] The case of Husgins and Barnes (2 Strange, 882) has been often referred to as
to this mode of murder. It was this: Huggins was warden of the Fleet Prison, with
power to execute the office by deputy, and appointed one Gibbon, who acted as deputy.
Gibbon had a servant, Barnes, wliosc business it was to take care of the prisoners, and
HISTORIA PLACITORUM CORONA. 466
So if a sheriff have a precept to hang a man for felony, and he
beheads him, it is murder. Co. P. C. Ibidem. [^\0'\
To these may be added the cases abovementioned, viz. if ^^. by
mahce forethought strikes at B. and missing him strikes C. whereof
he dies, tho he never bore any mahce to C. yet it is murder, and the
law transfers the mahce to the party slain; the like of poisoning, sed
de his supra cap. [I Ij
particularly of one Arne: and Barnes put Arne into a new built room, oVer the com-
mon sewer, the walls of which were damp and unwholesome, and kept him without fire,
chamber-pot, or other necessary convenience, for forty-four days, when he died. It ap.
peared that Barnes knew the unwholesome situation of the room, and IhatHuggins knew
the condition of the room, fifteen days at least hefore the death of Arne, as he liad been
once present at tlie prison, and seen Arne under such duress of imprisonment, and
turned away^ at which time Barnes shut the door of the room, in which Arne con-
tinued till h*died. It was found that Arne had sickened and died by duress of im-
prisonment, and that during the time Gibbon was deputy, Huggins sometimes acted as
warden. Upon these facts the court were clearly of opinion, that Barnes was guilty
of murder. But they thought that Huggins was not guilty, as it could not be interred,
from merely seeing the deceased once during his confinement, that Huggins knew that
his situation was occasioned by the improper treatment, or that he consented to the
continuance of it: and they said, that it was material that the species of duress, by
wliich the deceased came to his death, could not be known by a bare looking-in upon
him. Huggins could not know the circumstances under which he was placed in the
room against his consent, or the length of his confinement, or how long he had been
without the decent necessaries of life: and it was likewise material, that no application
was made to Huggins, which perhaps might have altered the case. And the court
seemed also to thmk, that as Barnes was the servant of Gibbon, and Gibbon had the
actual management of the prison, the accidental presence of tlie principal would not
amount to a revocation of the authority of the deputy. Rex v. Hugi^ins, and Barnes,
2 Str. 882. 2 Lord Raym. 1574. Fost. 332. 1 East, P. C. 331, 332. "
[10] With respect to the duty of officers in the execution of criminals, it has been
laid down as a rule, that the execution ought not to vary from the judgment; for if it
doth, the officer will be guilty of felony at least, if not of murder. 3 Inst. 52. 211; 4 Bl.
Com. 179. And in conformity to this rule it has been holden, that if the judgment be
to he hanged, and the officer behead the party, it is murder; 3 Inst. 52; 4 Blac. Com.
179. And that even the king cannot change the punishment of the law, l)y altering the
hanging or burning into beheading, though, when beheading is part of the sentence, the
king may remit the rest. 3 Inst. 52. But others have thought, that this prerogative
of the crown, founded in mercy ^nd immemorially exercised, is part of the common
law: Fost. 270. F. N. B. 244, h. 19 Rym. Foed. 264. And that though the king can-
not by his prerogative vary the execution so as to aggravate the punishment beyond
the intention of the law, yet he may mitigate the pain or infamy of it: and, accord,
ingly, that an officer, acting upon a warrant from the crown for beheading a person
under sentence of death for felony, would not be guilty of any offence. Fost. 268;
4 Blac. Cum. 405; 1 East, P. C. 335. But the rule may apply to an officer vary-
ing from the judgment of his own head, and without warrant or the colour of au-
thority.
[11] Where a blow aimed at one person lighteth upon another and killeth him, this
ia murder. Fost. 261. Thus A., having malice against B., strikes at and misses him,
but kills C, this is murder in A.: and if it had been without malice and under such
circumstances that if B. had died, it would have been but manslaughter, the killing of
C. also would have been but manslaughter. Dyer, 128; Kel. Ill, 112, 117; Fost. 261;
1 Hawk.c. 31, s. 42; State v. Cooper, 1 Green, N. J. R. Again, A., liaving malice against
B., assaults him, and kills C, the servant of B., who had come in aid of his master: this
is murder in A.; for C. was justified in attacking A. in defence of his master, who was
thus assaulted. In another case, if A. give a poisoned apple to B., intending to poison
466 HISTORIA PLACITORUM CORONA.
her, and B., ignorant of it, give it to a child, who took it and died; this is murder in A.,
but no offence in B.; and lliis, though A., who was present at the time, endeavoured to
dissuade B, from giving it to tlxe child. 2 IHoioden Com. 474. So where Plummer and
seven others, opposed the king's olKcers in the act of seizing wool. One of those per-
sons shot off a lusee and killed one of his own party. The court held, in giving judg-
ment upon a special verdict, that as the prisoner was upon an unlawful design, if he
had in pursuance tliereof discharged the fusee against any of the king's officers that
came to resist him, in the prosecution of that design, and by accident had killed one of
his own accomplices, it would have been murder in him. As if a man out of malice to
A. shoot at him, but miss him and kill B., it is no less a murder than if he had
killed the person intended. Kelijng, 111; Lord Raym. 1581; 9 St. Tr. 112; Hig.
gins's case; Di/er, 128; Fl. 6U; Cromp. lUl; 9 Co. 81, Agnes Gore^s case; D. WiL
liains^s case, cited in the Queen v. Mawgridge; Kelyng, 131, 132; 9 St. Tr. 61. In
another case, the prisoner mixed poison in an electuary, of which her husband, and'
her father, and anotlier, took part and fell sick. Martin, the apothecary, who had made
the electuary, on being questioned about it, to clear himself, took part of it and died.
On this evidence a question arose, whether Agnes Gore, the defendant, bad committed
murder; and the doubt was, because Martin, of his own will, without invitation or
procurement of any, had not only eaten of the electuary, but had by ftirring it so
incorporated the poison with the electuary, that it was the occasion of his death. The
judges resolved, that the prisoner was guilty of the murder of Martin, for the law
conjoins the murderous intention of Agnes in putting the poison into the electuary to
kill her husband, with the event which thence ensued; quia eventus est qui ex causa
sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary
by Martin, without putting in the poison by Agnes, could not have been the cause of
his death. 9 Co. 11; Jenk. Cent. 220; 3 Inst. 51; Plowd. Com. 514; 1 Hawk. P. C. Sf
C. 31, s. 3. Under the same head may be classed the case of one who gave rnedicine
to a woman; and that of another who put skewers in her womb, with a view in each
case to procure an abortion ; whereby the women were killed. The case, at common
law, was murder; though the original intent, had it succeeded, would not have been so,
but only a great misdemeanor; for tlie acts were in their nature malicious and delibe-
rate, and necessarily attended with great danger to the person on whom they were
practised. Com. v. Chauncey, 2 Ashmead, 227. ante, 90.
If a man have a sudden quarrel, and fight with A., by which his passions are strongly
excited, and while his passions are thus excited, he without any real or supposed provo-
cation kill B., who is an utter stranger to the whole affair, and has not interfered in the
quarrel, nor been in any way connected therewith, even in the party's own supposition,
it will be murder. U. S. v. Trovers, 2 W/teeZer's C. C. 503, per Story, J. But, where
the prisoner, having had a quarrel with his wife, pursued her, and aimed a blow at her
with an axe, which fell on the head of his infant son, then in her arras, by which he
was instantly killed, it being shown that the prisoner was ignorant of his child's posi-
tibn, and was at the time in the heat of blood, seeking to avenge himself on his wife for
a supposed injury, it was held, that as the case was to be considered as if the wife had
been the victim, the same grade of homicide would attach to the killing of the child as
it would have done to that of the wife, if she had been killed. Comwonvjealth v. Dough,
erty, 7 SmitWs Laws, 296. But in this, as in cases of malice prepense and express, if the
blow intended for one would in law only have amounted to manslaughter, it will still be
the same, though by mistake or accident it kill another. Thus, in an old case, a quarrel
arising between some soldiers and a number of keelmen at Sandgate, a violent affray
ensued, and one of the soldiers was very much beaten. The prisoner, a soldier who
had before driven part of the mob down the street with his sword in the scabbard, on
his return, seeing liis comrade thus used, drew his sword, and bid the mob stand clear,
saying he would sweep the street; and on their pressing on him he struck at them with
the flat-side, and as they fled pursued them. Tiie other soldier in the mean time had
got away, and when the [jrisotier returned he asked whether they had murdered his
comrade; and being several times again assaulted by the mob, he brandished his sword,
and bid them keep off. At this time the deceased, who from his dress might be mis-
taken for a keelman, was going along about live yards from the prisoner; but before he
passed the prisoner went up to hiin and struck him on the head with the sword, of
which he presently died. 'I'his was holdcn manslaughter: it was not murder, because
there was a previous provocation, and- the blood was heated in the contest: nor was it
in self-defence, because there was no inevitable necessity to excuse the killing in that
HISTORIA PLACITORUM CORONA. 466
manner. Foster, 262; 1 Hawk. c. 31, s. U; Leach, C. C. R. 151, S. C.f Wharton's
Am Cr.L. 231-3. .
At the Old Bailey, in 1690, the prisoners with twenty mote were- hired by J. S. to
remove his goods, in order to prevent a distress. The landlord with some assistants
endeavoured to prevent tliem, and an affray happened. The constable ordered them to
disperse, but could not prevail; as they were fighting, one of the company, to tiie jurors
unknown, killed a boy who had no concern in the quarrel, as lie was standing at his
father's door.
These facts being found in a special verdict, Holt and Pollexfen were of opinion that
it was murder in all the party. For though the removing of the goods might be lawful,
yet the continuing of the party together alter the constable had ordered tliem to be dis-
persed was unlawful; and besides, the great numbers that were thus assembled, and the
unusual weapons they were armed with, did also make the assembly unlawful. But
the majority of the judges held, that as the boy was totally unconcerned in the affray,
the killing of him could not be imputed to tjie rest who were merely engaged in the
general affray. That the boy could not be deemed an opposer of the party, so as to
make him an object of their contention ; and that they could no more be said to have
abetted the killing of him, than if one of the company had killed a person looking out
of a window. The King against Hubson and others, Chappets, M.S. 1. M.S. Sum. 187.
Title, Accomplices and Accessaries in Murder.
CHAPTER XXXVIII.
or MANSLAUGHTER, AND PARTICULARLY OP MANSLAUGHTER EXEMPT
FROM CLERGY, BY THE STATUTE OF 1 JAC. 8.
Manslaughter, or simple homicide, is the voluntary killing of an-
other without malice express or implied, and differs not in substance
of the fact from murder, but only differs in these ensuing circum-
stances.
1. In the degree of the offense, mtirder being aggravated with
malice presumed or implied, but manslaughter not, and therefore in
manslaughter there can be no accessaries before. 3. In the form of
the indictment, the former being always /e/on2ce exmalilici prxcogi-
tatd interfecit S,' murdravit, the latter only felunict interfecit. 3.
In the point of clergy, murder being by the statute of 23 H. cap. 1.
exempt from the benefit of clergy, but not manslaughter. 4. In the
form of the pardon of murder, for tho at common law a pardon of all
felonies had pardoned murder; yet by the statute of 13 /?. 2. cap. 1.
the pardon of murder must either be by the express word of murder,
or else it must be a pardon o{ felonica inlerftctio with a
special non obstante of the statutes of 13 i?. 2. H. 1. Jac. [ 467 ]
Lucases case. (a)
But the pardon of manslaughter may be general by the Avords of
felonia ov fclonica interfectio, and hence it is, that if a man indicted
of murder obtains a pardon of felony, or felonica interfectio only,
and be afterwards arraigned upon an indictment of murder, he must
plead quoad murdrum <§• inteifectionem ex malitid precozHatd, not
guilty, and as to the felony and interfection must plead his pardon j
(a) Moor, n. 1033, _p. 752.
467 HISTORIA PLACITORUM CORONA.
and then if the jury behig charged to inquire of the plea of not griilfy,
find it to be only a simple felony and interfection without malice fore-
thouglit,his pardon is to be allowd; and thus upon good deliberation
it was done in the year 1668, at No7'wich, Sir Thomas Pot la's case,
and is pursuant to the statute of 13 iff. 2. Which saith, " That before
a pardon of felonies shall be allowed as to murder, it shall be inquired
by good inquest, if he were slain by await or malice prepensed."
And I remember very, well in the case o( Rntaby T. 1653, wlio was
indicted of murder in Durham, the defendant pleaded a pardon of
felonica interfectio, and a general non obstante of all statutes; and
the attorney general demurred; it was ruled, 1. That the pardon was
insufficient with only a general non obstante, unless murder had
been containd in the body of the pardon by express words. 2. But
tho the pardon was disallowed as to murder, yet the prisoner
was remitted into Durham to be tried, whether guilty of murder,
and being so found was executed; but had it been found only man-
slaughter, he should have been discharged, and altho his plea of the
pardon to the indictment of murder was disallowd, yet it had stood,
good, if the conviction were of manslaughter: by the statute of 1 Jac.
cap. 8. " Any person that shall stab or thrust any person, that hath
not any weapon drawn, or hath not first stricken the party that shall
so stab or thrust, if the party die within six months, the offender is
ousted of clergy, provided it shall not extend to him, that kills se
defendendo, or by misfortune, or in preserving the peace, or chastiz-
ing his child or servant.
This act, tho but temporary, is continued till some other
r 468 ] act of parliament shall be made touching the continuance or
discontinuance thereof. 17 Car. I. cap. 4.
The use hath been in cases of this nature to prefer two indictments
against ofienders in this kind, viz. one of murder, another upon this
statute, and put the prisoner to plead to both, and io charge the jury
first with the indictments of murder, and if they find it not to be"
murder, then to charge them to inquire upon the other bill, because,
if convict upon either, the offender is ousted of clergy.
The indictment to put the prisoner from his clergy must be spe-
cially formed pursuant to the statute, viz. that he did with a sword,
«^'C. stab the party dead, he having no weapon drawn, nor having
struck first, otherwise it will be but a common manslaughter, -and the
party will have his clergy.
The indictment need not conclude contra formam statnii, no
more than in burglary or robbery, for the statute doth not make the
offense to be felony, but ousts the prisoner of his clergy, where the
crime is so circumstantiated as the statute cxpresseth; tliis was
agreed in the case of Page and Harwood. H. 23 Car. 1 B. P.{b)
i3ut yet it doth not, vitiate the indictment, tho it do conclude, Et
sic inlerfecit contra formam staluti, as was adjudged Trin. 9 Jac.
(h) In this case, as reported in Styles SG. it is not agreed to be so, on the contrary it
was denied per Roll, and doubted per Bacon.
HISTORIA PLACITORUM CORONA. 468
B. R. Bradley and Banks ;{c) and accordingly for the most part to
this day tlie indictments upon this statute do conclude contra for-
mam statuti, so it is good with or without such conclusion, but it
is best to follow the common usage, because every man dolh not
readily observe the reason of the omission of that conclusion.
In the case of Page and Harwood, H. 23 Car. 1. before cited,
these points were resolved in the king's bench, viz.
1. That no man is ousted of his clergy by this statute, but he that
actually stabs, and therefore those, that are laid in the indictment
to be present, aiding, and abetting in such a case, shall be admitted
to the benefit of clergy; and therefore, tho the indictment
of such a manslaughter be specially formed upon the sta- [469]
tute, and conclude contra formam statuti, yet it is a good
indictment of manslaughter against them that were present, aiding,
and abetting, and therefore upon such a special indictment of man-
slaughter upon the statute, the prisoner may be convict of simple
manslaughter, and acquitted of manslaughter upon the statute, and.
the indictment serves for a common manslaughter, as well as a
man upon an indictment of murder may be acquit of murder, and
convict of manslaughter.
22 Mart'ii, 14 Car. 1. At Newgate sessions David Williams
was indicted specially upon this statute for the death of Francis
Marbury ,[d) viz. Quod felonice, 6i-c. unum malleum de ferro <§•
ligno, anglice an hammer of wood and iron, ^ manu sua dextrd
erga <§• ad anteriorem partem capitis ipsius Francisci /'elo7iicb vio-
lenter S,' in furore sua projecit, 4* cum malleo prsedicto ipsum
Franciscum in 4* super anteriorem partem capitis 4'C. percussit <§•
pupugit, anglice did stab and thrust the said Marhury having no
weapon drawn, nor struck first, whereof he presently died, 4' sic
viodo (§* forrnd prsedictd interfecit SfC. contra formam statuti 8fC.
The prisoner pleaded not guilty, and a special verdict was found,
viz. that upon St. David'^s day the prisoner being a Welshman
had a leek in his hat, and there was at the same time in waggery a
Jacka-lent in the street put up with a leek, and one Nicholas Red-
man, a porter, spake to the prisoner, and pointing to the Jack-a-
lent said. Look at your countryman, and the prisoner being there-
with enraged, threw an hammer a\ Redman to the intent feloniously
to hit him, but missing him, the hammer did hit Francis Marhury^
whereof he died, ^' sic prsedictus Da.v[d praf at um Franciscum cu?n
tnalleo prsedicto pupugit <§• percussit, anglice did stab and ihrustf
the said Francis then not having any weapon drawn, nor then
having first stricken the said David ; and it was judged by Bram-
ston, Jones, and the recorder Gardiner, that Williams was guilty
of manslaughter at the common law, sed non contra formam sta-
tuti, so that it seems they thought not this to be a stubbing within
the statute, being done with the throwing of the hammer,
or at least they took this killing of Marbury, which was [470]
(c) Cro. Jac. 283. (d) W. Jones, 432.
VOL. I. — 42
470 HISTORIA PLACITORUM CORON.E.
not at all intended by Williams, to be out of the statute, tho it ex-
cused him not for manslaughter at common lavv.(£')
The words of the statute are stab or thrust, if the stabbing or
thrusting were with a sword, or with a pikestaff, it is within the
statute, so it seems, if it be a shot with a pistol, or a blow with a
sword or staff, yet quaere, i'or J^one^ justice denied it.
In M. 5 Jac. it was ruled, that if the party slain had a cudgel ia
his hand, it is a weapon drawn within this statute, and the prisoner
was admitted to his clergy at Newgate ; but it seems it must be in-
tended of such a cudgel, as might probably do hurt, not a small
riding-rod or cane.
In the year 1657.(/) at Newgate before Glynn, who then sat as
chief-justice, a man was indicted upon this statute, and a special
verdict found, that a bailiff havhig a warrant to arrest a man,
pressed early into his chamber with violence, but not mentioning
his business, nor the man knowing him to be a bailiff, nor that he
came to make an arrest, snatched down a sword, that hanged in his
chamber, and stabbed the bailiff, whereof he presently died : there
was some diversity of opinion among the judges, whether this were
within the statute, but at length the prisoner was admitted to his
clergy, for tho this case was within the words of the statute, and
not within the particular exceptions, yet it was held, that this case
was never intended in the statute, for the prisoner did not know,
but that the party came into rob or kill him, when he thus violently
brake into his chamber without declaring his business.(^)[l]
(e) Lord chief justice Holt in Mawgridge^s case, Kel. 131. concurs with this judg-
ment, for that it was not such a weapon or act, as is within the statute ot" stabbing, but
■he is of opinion, that Williams ought to have been found guilty of murder, if the indict-
ment had been so laid, for that there was not a sutficient provocation to lessen the offense
to manslaughter.
(/) Qiiare, whether the case here m^ant be not Buckner^s case, M. 1655. reported in
Styles 467. but that, as it is there reported, was not the case of a bailiff, but of a creditor,
who stood at the door with a sword undrawn to keep the debtor in, till they could send
for a bailiff, and was killed by the debtor.
ig) See Kel. 136.
[1] There is no difference between murder and voluntary manslaughter, but that
murder is upon malice aforethought, and manslaughter is upon a sudden occasion. 4 Bl,
Com. VJl. 1 Hawk. c. Si.s. 1. 1 East, P. C. 218.
The following are some of the more usual modes in which manslaughter occurs:
In fighting. — The character of the con)bat, the nature of the weapon used, if any, the
relative strength and positions of the parties, and all tho attendant and preceding circum-
stances must be considered in order to determine whether a killing in combat be mur-
der, manslaughter, or no felony whatever. 3 Inst. 55. Rex v. Kensell, I C. Sf P. 437.
1 East, P. C. 243. Hex v. Taylor, 5 Burr. 27!)3. Rex v. Anderson, 1 Russell, 447.
Rex V. Ayers, R. 6( R. IGG. Rix v. Rankin, R. S( R. 443. R. v Smith, 8 C. S( P. 160.
R. V. Lynch, 5 C 4" /'. 324. R. v. Kirkham, 8 f. S^ I'. 115. State v. Scott, 4 Iredell,
10!). Slide V. Rutherwood, 1 Hawks. 34!). Com. v. Daily, 4 Penna, L. J. 158. State v.
McCants, I Spear, 484.
When a tinrd party interferes, and kills one of the combatants. 1 Hawk. c. 31. 8. 35,
36.55. 1 East, P. C. 2^1,2^2. 12 Co. 87. Kel. 5d. Conner v. The State, 4 Yer-
ger, 137.
I
HISTORIA PLACITORUM CORONA. 470
Even in an attempt to part them when more force is used than is necessary. Rex v.
Bourne, 5 C. Sf P. 120.
So also aiming at one person and killing another. Rex v. Conner, T C. Sf P. 438.
Provocation by words will not reduce the killing to manslaughter. Ante, chap. 37.
note.
. But a personal indignity will. Idem.
Or finding a man in adultery with his wife. Rex v. Manning, T. Raym. 212. People
V. Ryan, 2 Wheeler's C. C. 54.
Or a father seeing one committing an unnatural crime with his son. Reg, v. Fisher,
8 C. Sf P. 162.
Or an unwarrantable imprisonment of a man's person. Rex v. Buckner, Sly. 467.
Reg. V. Curvin, R. if M. 132. R. v. Thompson, R. Sf M. 88. R. v. Withers, 1 East,
P.C. 233.
Killing by excessive correction, if with an instrument not likely to kill, is manslaugh-
ter — if with a deadly weapon, murder. Foster, 262. R. v. Conner, 7 C. Sf P. 438.
Rex V. Turner, Comb. 407, 408. Rex v. Wigg, 1 Leach, 378. n. Anon. 1 East, P. C,
261. R. V. Lrggitt, 8 C. Sf P. Idl. R. v. fia;/, 1 £as<, P. C. 236. i?. v. Cheesman,
1 C.S( P. 425.
Killing an officer attempting to make an irregular arrest may be manslaughter. Jer.
Arch. C. L. 429. 1 Russ. on C. 592. Ante, chap. 37, note. C'o?n. v. Drew, 4 Mass. 391.
jRe^. V. Phelps, 1 Car. Sf Mars. 180.
So also killing in prize fights or unlawful sports ; the former under some circumstances
may be murder; but if the sport is lawful and rightly conducted, the killing is, if acci-
dental, only misadventure. R. v. Perkins, 4 C. iSj- P. 537. -R. v. Hargrave, 5 C. Sf P.
170. R. V. Murphy, 6 C. S( P. 103. 4 Bl. Coin. 183. Foster, 259. sed vide infra, 472.
Reg. V. Canniff, 9 C. Sf P. 359. '
And killing by wanton and heedless acts is manslaughter. R. V. Mastin, G C. Sf P,
396. R. V. Timmins,! C. Sf P. 499. R. v. Sullivan, 1 C. Sf P. 641. Fenton's case,
1 Lewin, 179.
And by improper medical treatment which shows a criminal disregard of human life.
R. V. Long, iC. Sf P. 423. R. v. 5'enior, iJ. 4- M. C. C. 346. ii. v. Webb, 1 M. Sf Rob.
410. R. v, Siinpson, Willcock's Laws Medical Profession, Append. 227. Com, v.
Thompson, 6 Mass. 124.
Or gross neglect in delivering medicines of which death is the consequence. Tessy-
mond's case, 1 Lew. 169.
Death ensuing from gross neglect of natural duty, in the case of children or infirm
persons, is manslaughter. R. v. Edwards, 8 C. Sf P. 611. R. v. Saunders, 7 C. S( P.
277. R. v. Smith, 8 C. Sf P. 153. /Z. v. Duties, per Patterson, Justice, Hertford 6'ujn.
mer Jssizes, 1831. Burns' Justice, 808, fd. 1845. i?. v. Marriott, 8 C". ^ P. 425.
An indictment for manslaughter stated that the prisoners gave, administered, and
delivered to one M. A. divers large and excessive quantities of spirits and water, wine
and porter, and induced, procured, and persuaded him to drink them, the said quantities,
&c. being likely to cause death, which they well knew. It then averred tliat M. A., by
their persuasion, &c. drank, &c. and became greatlj' drunk and distempered, and while
he was so, the prisoner assaulted him, and forced him to go into, and placed and confined
him in a cabriolet, and drove and carried him about in it for two hours, and thereby
greatly shook and knocked him about, by means whereof he became mortally sick, &c.,
and of the said large and excessive quantities, «Sfc., and of the said drunkenness, &.C.,
occasioned tliereby, and of the said shaking, &c., and of the sickness and distemper
occasioned by it, he instantly died. The deceased was a man in possession under the
sheriff, and one of the prisoners, of whose goods he was in possession, assisted by his
brother and a friend, plied the man with liquor, themselves drinking freely also, and
when he was very drunk put him into a cabriolet and caused him to be driven about the
streets ; and about two hours after he had been put into tiie cabriolet he was found dead :
Held, that, if it were essential to prove that the prisoners knew that the liquors were
likely to cause death, the case would be one of murder and not of manslaughter, but that
such allegation was not a material part of the indictment, but might be dismissed from
the jury's consideration. Held also, that if the prisoners, when the deceased was drunk,
put him into a cabriolet and drove hirn about in order to keep him out of possession, and
by so doing accelerated his death, it would be manslaushler. Rrg. v. Packard, 1 Car.
^ M. 236.
471 HISTORIA PLACITORUM CORONA.
CHAPTER XXXIX.
TOUCHING INVOLUNTARY HOMICIDE, AND FIRST OF CHANCE-MEDLEY
OR KILLING PER INFORTUNIUM.
Involuntary ?iomicide is the death or hurt of the person of a man
against or besides the will of [lim that kills him.
And in these cases, to speak once for all, the indictment itself must
find the special matter, or in case the indictment be of murder or
manslaughter, and upon the trial it appears to the jury it was invo-
luntary, (as by misfortune, or in his own defense) the jury ought to
find the special matter, and so conclude. El sic per itifortunivm, or
se defendendo, and not generally, that it was/7er infortunium^ or se
defendendo, because the court must jndge upon the special matter,
whether it be murder, homicide, ov per infortunium, ox se defenden-
do, and the jury is only to find the fact, and leave the judgment
thereupon to the court; and in such case the prisoner must not plead
the special matter, and so justify, but must plead not guilty, and the
special matter must be found by the jury, Stamf P. C. Lib. I, cap. 7.
fol. 15. a. Lib. III. cap. 9. fol. 165. a. for upon the special matter
found, the court may give judgment against the conclusion of the
verdict, as that the fact is manslaughter, tho the conclusion of the
verdict be per infortunium, or se defendendo. 44 E. 3. Coron. 94.
This involuntary homicide is of two kinds, viz. either 1. When it
is purely involuntary and casual, as the killing of a man ;7er infortu-
nium, or 2. When it is partly involuntary, and partly voluntary, but
occasioned by a necessity, tliat the law allows, which is commonly
called homicide ex necessitate, as killing a man in his own defense,
or the like; de quibus postea.
Homicide per infortunium is, where a man is doing a
[^ 47*2 ]j lawful act, and without intention of bodily harm to any
person, and by that act death of another ensues, as if a man
be shooting at buts or pricks, and by casualty his hand shakes, and
the arrow kills a by-stander. 21 H.l. 28. a. 6 E. 4. 7. b.
Or if a carpenter or mason in building casually let fall a piece of
timber or stone, and kills another. 21 //. 7. B. Coron. 59.
But if he voluntarily let it fall, whereby it kills another, if he giyes
not due warning to tliose that are under, it will be at least man-
' slaughter; quia debt tarn diiigentiam non adhibuit.
So if a man be felling a tree in his own ground, and it fall and
kill a person, it is chance-medley. 6 E. 4. 7.
IJut in all these cases, if it doth only hurt a man by such an acci-
dent, it is nevertlieless a trespass, and the person hurt shall recover
his damages, for tho the chance excuse from felony, yet it excuseth
not from trespass. 6 E. 4. 7.
Regularly he that voluntarily and knowingly intends hurt to the
person of a man, tho he intend not death, yet if death ensues, it ex-
HISTORIA PLACITORUM CORONA. 472
cuseth not from the guilt of murder, or manslaughter at least; as if
A. intends to beat B. but not to kill him, yet if death ensues, this is
not per infortunium, but murder or manslaughter, as the circum-
stances of the case happen.
And therefore I have known it ruled, that if two men are playing
at cudgels together, or wrestling by consent, if one with a blow or
fall kill the other, it is manslaughter, and not per infortunium, tho
Mr, Dalton, cap. 96,{a) seems to doubt it; and accordingly it was
resolved P. 2. Car. 2. by all the judges upon a special verdict from
Newgate, where two friends were playing at foils at a fencing school,
one casually kild the other; resolved to be manslaughter.[l]
Sir John Chichester, and his man-servant, whom he very well
loved, were playing together, the man had a bedstafF in his hand,
and Sir John had his rapier in the scabbard, Sir John, according to
the usual sport between them, bids his man guard his thrust or pass,
which he was making at him with his rapier in the scabbard,
the servant with the bedstatf brake the thrust, but withal [473]
struck off the chape of the scabbard, whereby the end of the
rapier came out of the scabbard, but the thrust was not so effectually
broken, but the end of the rapier prickt the servant in the groin,
whereof he died : Sir John Chichester was for this indicted of murder,
and tried at the king's bench bar, where all this evidence was given ;
and it was ruled, 1. That it was not murder, tho the act itself was
not lawful, because there was no malice or ill will between them.
2. That it was not barely chance-medley, or per infortunium, be-
cause altho the act, which occasioned the death, intended no harm,
nor could it have done harm, if the chape had not been stricken off
by the party kild, and tho the parties were in sport, yet the act itself,
the thrusting at his servant, was unlawful, and consequently the
death, that ensued thereupon, was manslaughter, and was accord-
ingly found and adjudged, which I heard, 23 Car. I, ,(6) 11 H.l.
23. a. Kelw. 108, 136.
But if two play at barriers, or run a -tilt without the king's com-
mandment, and one kill the other, it is manslaughter; but if it be by
the king's command, it is not felony, or at most per infortunium.
11 H. 7. 23. B. Coron. 229. Dalton, cap. 96. Co. P. C.p. 56. (c)*
If t/5. come into the wood of B. and pull his hedges, or cut his
(a) New Edit. cnp. 148. p. 479.
(6) AleifTi 12. This seems a very hard case, and indeed the foundation of it fails, for
the pusliing with a sword in the scabbard by consent seems not to be an unlawful act,
for it is not a dangerous weapon likely to occasion death, nor did it do so in this case
but by an u\]fireseen accident, and therein differs from the case of justing, (or prize-
fighting) wherein such weapons are made use of, as are fitted, and likely to give mortal
wounds.
(c) Brooke, after having taken notice of this as Fincux^s opinion, says, That other
justices in the time of Henry VIII. denied this, and held it felony to kill a man in justing,
or spoiling after tliat manner, notwithstanding the king's command, for such command
is against law.
[I] See Foster, 259 ; 1 Hawk. c. 29. s. 5; Ward's case, I East, P. C. 270.
* See post p. 475, note 4.
473 HISTORIA PLACITORUM CORONA.
wood, and B. beat him, whereof he dies, this is manslaughter,
because, tho it was not lawful for Ji. to cut the wood, it was not
lawful for B. to beat him, but either to bring him to a justice of
peace, or punish him otherwise according to law.
But if a school-master correct his scholar, or a master his servant,
or a parent his child, and by struggling or otherwise, the
[ 474 ~\ child or scholar, or servant die, this is only per infortunkim,
Crom.pt. Just. 28 b.
But this is to be understood^ when it happens only upon moderate
correction, for if the correction be with an unfit instrument, (^) or too
outragious. then it is murder, as it happened in a case at Norwich.
assizes 1670, where the master struck a child, that was his appren-
tice, with a great staff, of which he died, it was ruled murder. [2]
Several persons come to enter the house of ^/I. as trespassers, ,/^.
shoots and kills one, this is manslaughter, otherwise it had been, if
they had entered to commit a felony. Crompt. de Pace, fol. 29. a.
Harcourt'.s case.
But in the case of Levet indicted for the death of Frances Free-
mail, the case was. That William Levet being in bed and asleep in
the night in his house, his servant hired Frances Freeman to help
her to do her work, and about twelve of the clock in the night the
servant going to let out Frances thought she heard thieves breaking
open the door, she therefore ran up speedily to her master, and in-
formed him, that she thought thieves were breaking open the door,
{d) As with a bar of iron, or a sword, or a great cudgel, Kel. 64, 133.
[2] In all cases where the correction is inflicted with a deadly weapon, and the party
dies of it, it will be murder; if with an instrument not likely to kill, though improper
for the purpose of correction, it will be manslaughter. Foster, 262; Reg. v. Connor, 7 C.
4- P. 438; R. V. Turner, Comb. 407-8; R. v. Wigg, 1 Leach, 378, n. 1 EosI, 262; R. v,
Leggit, I C Sf P. 191. And though the correction exceeds the bounds of moderation,
the court will pay a tender regard to the nature of the provocation, where the act is ma-
nifestly accompanied with a good intent, and the instrument not such as must in all
probability occasion death; though tiie party were hurried to great excess. As was liie
case of a father {Worcester, Sp. Ass. 1775,) whose son had frequently been guilty of
stealing, complaints of which had come to the father, who had often corrected him. At
length, the son being charged with another theft, and resolutely denying it, though
proved against him, the father, in a passion, beat his son with a rope, by way of chas-
tisement for tlic offence, so much, that he died. The father expressed the utmost horror,
and was in the greatest affliction for what he had done, intending only to have punished
him with such severity as to have cured him of his wickedness. The learned judge who
tried the father, consulted his colleagues in office, and the principal counsel on the cir-
cuit, who all concurred in opinion that it was only manslaughter, and so it was ruled.
1 East's P. C. 261. Persons on board a ship arc necessarily subject to soniethitig like a
despotic government, and it is extremely important that tiie law should regulate the
conduct of those who exercise dominion over them. 'J'lierefore, in a case of manslaugh-
ter, against the captain and mate of a vessel, for accelerating the death of a seaman,
really in ill health, but whom, they alleged, they believed to be a skulker, the question
will be, in determining whether it is a slight or an aggravated case, whether the pheno-
mena of the dcatii were such as would excite tiic attention of reasonable and humane
men; and, in such a case, if the deceased be taken on board after be was discharged
from an lios[)ital, it is important to inquire whether he was sent on board by the surgeon'
of the hospital as a person in a fit state of health to perform the duties of a seaman.
Reg. V. Ltggatt, 8 Car. Sf P. lUl.
HISTORIA PLACITORUM CORONA. 474
the master rising suddenly, and taking a rapier ran down suddenly,
Frances hid herself in the buttery lest she should be discovered.
Leveies wife spying Frances in th6 buttery, and not knowing her
cried out. Here they he that wonld undo 11s: Level runs into the
buttery in the dark, not knowing Frances, but thinking her to be a
thief, and thrusting with his rapier before hini hit Frances in the
breast mortally, whereof she instantly died: this was resolved to be
neither murder, nor manslaughter, uor felony: vide the case cited by
justice Jones, P. 15. Car. 1. B. R. and Croke, n. l.[3] (in Cook^s
case,(e) for kilUng a baihff, that broke a window to execute a Capias,
which was judged to be manslaughter;) where the book says it was
not felony, qnsere whether it be not homicide by misadventure, for
the party kild was in truth no thief, tho mistaken for one, and tho it
be not homicide vohintary, yet it seems to he per infortunium.
If a man knowing that people are passing along the street
throws a stone, or shoots an iarrow over the house or wall, [[ 475 ]
with intent to do hurt to people, and one is thereby slain,
this is murder, and if it were without such intent, yet it is manslaugh-
ter, and not barely ;;er infortunium, because the act itself was un-
lawful; but if the man were tiling an house, and let fall a tile know-
ingly, and gave warning, and yet a person is kild, this is per infor-
tunium, but if he gave not convenient warning, it is manslaughter,
quia non udhihuit debitam diligentiam.{f)
\i Ji. \v\ his own park shoot at a deer, and the arrow glancing
against a tree hits and kills B. this is homicide per infortunium, be-
cause it was lawful for him to shoot in his own park.
But if ^. without the licence of B. hunt in the park of B. and
his arrow glancing from a tree killeth a by-stander, to whom he in-
tended no hurt, this is manslaughter, because the act was unlawful.
So if ^. throw a stone at a bird, and the stone striketh and killeth
another, to whom he intended no harm, it is per infortunium.
But if he had thrown a stone to kill the poultry or cattle of B. and
the stone hit and kill a by-stander, it is manslaughter, because the act
was unlawful, but not murder, because he did it not maliciously, or
with an intent to hurt the by-stander.[4]
(e) Cro. Car. 538. W. Jones 429.
(/) This is upon supposition, that the house do not stand near an liiahway or place
of resort, for then, tho he should cry out first, it is manslaughter. See hull's case 1664.
Kel. 41).
[.3] " Possibly it might have better been ruled manslaughter at common law ; due cir-
cimispection not having been used, but it was not manslaughter within the statute."
Foster, 299. See 1 East, P. C. 274, 275 ; 1 Hawk. P. C. c. 28. s. 27.
[4] There are many cases in which a party causing the death of another, without
positive intention of inflicting injury, is criminally responsible, though he is never
chargeable with murder under such circumstances. The test of responsibihty is
whether the conduct of the accused was contrary to any law, or not being so forbidden,
was so gross, negligent, or violent as necessarily to produce the belief that the act
which remotely or immediately caused death was such an act, or '.vas done in such
manner as to involve moral impropriety. The conclusion of guilt is not to be hastily
drawn nor inferred from remote circumstances, and it is only when a clear case is
475 HISTORIA PLACITORUM CORONA.
By the statute of 33 //. 8. cap. 6. " No person not having lands,
4*c, of the yearly value of one luuidred pounds jier annum may
keep or shoot in a gun upon pain of forfeiture of ten pounds."
Suppose therefore such a person not quahfied shoots with a gun at
a bird, or at crows, and by mischance it kills a by-stander by the
breaking of the gun, or some other accident, that in another case
would iiave amounted only to chance-medley, this will be no more
than chance-medley in him, for though the statute prohibit him to
keep or use a gun, yet the same was but malum prohibi-
I] 476 3 /«w,and that only under a penalty, and will not inhanse the
effect beyond its nature.
«/^. having deer frequenting his corn-field out of the precinct of any
forest or chace sets himself in the night-time to watch in a Wedge,
and sets B. his servant to watch in another corner of the field with
a gun charged with bullets, giving him order to shoot, when he
hears any bustle in the corn by the deer, the master himself im-
providently rushes into the corn, the servant supposing it to be the
deer shoots, and thereby kills his master in the night, this is neither
petit treason, murder, nor manslaughter, but chance-medley, for the
servant was misguided by his master's own direction, and was igno-
rant, that it was any thing else but the deer. This was my opinion
in a case happening at Peterborough session ; but it seemed to me,
that if the master had not given such direction, that was the occasion
of his mistake, it would have been manslaughter to have shot at a
man, tho by mistaking it for the deer, because he did not adhibere
debilam diligentiam to discover his mark, but shot directly at the
person of a man, tho mistaking it for a deer.
Ji. drives his cart carelessly, and it runs over a child in the street,
if Ji. have seen the child, and yet drives on upon him, it is murder;
but if he saw not the child, yet it is manslaughter; but if the child
had run cross the way, and the cart run over the child before it
was possible for the carter to make a stop, it is per infortunium^
and accordingly this direction was given by us at Newgate sessions
in 1672, and the carter convict of manslaughter.
If a man or boy riding in the street whip his horse to put him into
speed, and run over a child and kill him, this is homicide, and not
per infortunium, and if he rid so in a press of people with intent
to do hurt, and the horse had kild another, it had been murder in the
rider,[5]
established tli.it the party is liable for the consequences of an act which may be in itself
legal. Various adjudications illustrate this kind of responsibility for the death of another.
As an accidental killing by shootitifr, furious driving, taking an unruly horse into a
Crowd, carelessly laying poison for rats, want of caution towards drunken persons, care-
less navigation of vessels, firing guns in a populous place, &c., &c. Foster, 'i^%, 263;
4 Bl. Com. 182-3; H. y. rimmins, 7 C. 4- P. 42iJ ; R. v. Grout, 6 C. &; P.'G29 ; Anon.
1 East, P. C. 2G1 ; R. v. Walker, 1 C. ^ /'. 320; R. v. Mustin, 6 C. Sf P. 3!)6; R. v.
Green, 7 C. Sf P. I. 50; R. v. Allen, idem 153; Burton's case, 1 Strange, 481; Comm,
V. York, 7 Boston Law. Rep. 517; 1 Russ. on Cr. 657.
[5] See 1 Geo. IV. c. 4. 7 Sf8; Geo. IV. c. 75, as to accidents from furious driving of
HISTORIA PLACITORUM C0R0N7E. 476
BtU if a man or boy be riding in the street, and a by-stander
whip the horse, whereby he runs away against the will of the
rider, and in his course runs over and kills a child or man, it is
chance-medley only, and in that case the jury ought not
to find him not guilty generally, but the special matter; [477]]
but yet, because the coroner's inquest, which stood untra-
versed, had found the special matter, the court received the verdict
of not guilty upon the indictment by the grand inquest of mur-
der, and the party confessed the indictment by the coroner, and
had his pardon of course, and this was said by Lee secondary
to be the course at Newgate, 1 Sept. 16 Car. 2. Eicfiard Pretty''s
case.
Tho the killing of another per infortunium be not in truth
felony, nor subjects the party to a capital punishment, and there-
fore usually in such cases the verdict concludes, quod inter-
fecit per infortunium, 8f' no7i per feloniain,^^X. the party forfeits
his goods, and tho he ought to have quasi de jure a pardon of
course upon the certificate of the conviction, yet he is not to be
discharged out of prison, but bailed till the next term or sessions to
sue out his pardon of course, for tho it was not his crime, but his
misfortune, yet because the king hath lost his subject, and that
men may be the more careful, he forfeits his goods, and is not
presently absolutely "discharged of his imprisonment, but bailed, t^^
supra.
And so strict was the judicial law of the Jews in relation to the
life of man, that even in this case the avenger of blood might kill
the manslayer per infortunium before he got to the city of refuge,
Duet. xix. 5, 6. [6] . .
stage-coaches, and accidents by unloading of boats. 4 Bl, Com. 200; 1 East, P. C. 231;
3 Wilson, 407-8 ; Foster, 2G2, 263, 259, 280, 299 ; Keil. 40.
[6] Homicide by misadventure is where a man is doing a lawful act, without intent to
hurt another, and death casually ensues. Hale's Sum. 31 ; 1 East's, F. C. 221.
As where a labourer, being at work with a hatchet, and the head flies oft' and kills
one who stands by; or when a third person whips a horse on which a man is riding-,
whereupon he springs out and luns over a child, and kills him ; in which case the rider
is guilty of homicide by misadventure, and he who gave the blow of manslaughter,
1 Hawk. c. 29. s. 3.
It is not sufficient that the act upon which death ensues be lawful and innocent in
itself. It must be done in a proper manner, and with due caution to prevent mischief.
Fost.262; 1 East's P. C. 261.
A p:irty causing the death of a child by giving it spirituous liquors in a quantity quite
unfit for its tender age, is guilty of manslaughter. R. v. Martin, 3 C. ^- F. 211.
In the case of workmen throwing stones and rubbish from a house in the ordinary
course of their business, by which a person underneath happens to be killed; if they de-
liberately saw danger, or betrayed any consciousness of it, from whence a general ma.
lignity of heart might be inferred, and yet gave no warning, it will be murder, on account
of the gross impropriety of the act. If they did not look out, or not till it was too late,
and there was even a small probability of persons passing by, it will be manslaughter.
But if it had been a retired place, where there was no probability of persons passing by,
and none had been seen about the spot before, it seems to be no more than accidental
death; for though the act itself might breed danger, yet the degree of caution requisite
being only in proportion to the apparent necessity of it, and there being no apparent call
477 HISTORIA PLACITORUM CORON.^.
for it in the instance put, the rule applies, de non existentibus et non apparentihus eadem
est ratio. So, if any person had been seen on the spot, but due warning were given, it
will be misadventure. Hull's case, 1664; Kel. 40; 1 Russ. 769. On the otlier hand, in
London and other populous towns, at a time of day when the streets are usually thronjTed,
it would be manslaughter, notwithstanding the ordinary caution used on other occasions
of giving warning; for in the hurry and noise of a crowded street, few people hear the
warning, or sufficiently attend to it, however loud. 1 East's P. C. 262,
Again, if a person driving a carriage happens to kill another: if he saw or had timely
notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; for
the presumption of malice arises from the doing of a dangerous act intentionally; there
is the heart regardless of social duty. If he might have seen the danger, but did not
look before him, it will be manslaughter, for want of due circumspection. But if the
accident happened in such a manner that no want of due care could be imputed to the
driver, it will be accidental death, and he will be excused. 1 EasVs P. C, 263. The
rricre calling out will not excuse the offender. R. v. Walker, \ C. Sf P. 320.
A. was driving a cart with four horses, in the highway at VVhitechapel, and, he
being in the cart, and the horses upon a trot, they threw down a woman who was going
the same way with a burthen upon her head, and killed her: Holt, C. J., Tracy, J., Bar-
ron Bury, and the Recorder hotel, held this to be only misadventure. But, by Lord Hull,
if it had been in a street where people usually pass, this had been manslaughter; but it
was clearly agreed it could not be murder. O. B. Sess. before M. T. 1704; 1 EasVs P.
€. 263.
To make the captain of a steam-vessel guilty of manslaughter, in causing a person to
be drowned by running down a boat, the prosecutor must show some act done by the
captain^ and a mere omission on his part in not doing tiie whole of his duty is not suffi-
cient. But if there be sufficient light, and the captain of a steamer is either at the helm
or in a situation to be giving the command, and does that which causes the injury, he
is guilty of manslaughter. R. v. Gree, 7 C. S( P. 156. The captain and pilot of a stcamv
boat were both indicted for the manslaughter of a person who was on board of a smack,
by running the smack down. The running down was attributed, on the part of the pro-
secution, to improper steerage of the steamboat, arising from there not being a man at
the bow to keep a look-out at the time of the accident. It was proved that there was a
man on the look-out when the vessel started, about an hour previous. According to one
witness, the captain and pilot were both on the bridge between the paddle-boxes; accord-
ing to another, the pilot was alone on the paddle-box. Held, that under these circum-
stances there was not such personal misconduct on the part of either as to make them
guilty of felony. R. v. Allen and another, 7 C. Sf P. 153.
The law does not require the utmost caution that can be used ; it is sufficient that a
reasonable precaution, what is usual and ordinary in the like cases, be taken; such as
hath been found by long experience in the course of human affiiirs to answer the end;
for such conduct shows that the party was regardful of social duly, and free from any
manner of guilt. Fost. 264; 1 EasVs P. C. 266. And therefore upon that principle, Mr.
Justice Foster denies Ramptori's case {Kel. 41,) to be law; and indeed there is a qi/cere
put to it in the margin ot the report. The prisoner had found a pistol in the street,
which he had reason to believe was not loaded, having tried it with the rammer, which
had gone down into the muzzle of the pistol; the rammer, in fact, being too short. He
carried the pistol home, and his wife standing before him, he cocked it and touched the
trigger; on which the pistol went off and killed the woman. This was ruled manslaugh-
ter. In truth the man had used the ordinary precaution adapted to the probability of
danger in such cases: he had examined the pistol by the usual method of trial. And
though it was doubtless an idle frolic, yet the heart was free from all sort of guilt, even
the guilt of negligence; and therefore tlie act ought to have been excused. And the same
learned judge delermined accordingly in a case something similar.
Upon a Sundiiy morning, a man and his wife going to dine at a friend's house in the
neighbourhood, he carried his gun with him, to divert himself on the way; but before
dinner he discharged it, and set it up in a private place in his friend's house. After
dinner he \vent to church, and in the evening returned home with his wife and neigh-
bours, bringing his gun with him ; which was put into the room where his wife was, she
having brought it [).irl of the way. He, taking it U[), touched the trigger, and the gun
went off, and killed his wife. It came out in evidence, that, while the man was at
church, a person belonging to the family privately charged the gun, and went alter some
game; but bcf'orc tlie service at church was ended, returned it loaded to the place "from
whence he had taken it; and where the defendant, who was ignorant of all that had passed,
HISTORIA PLACITORUM CORONA. 477
found it to all appearance as be had left it. Mr. Justice Foster tlioug^ht it unnecessary to
inquire wlietlier tlie man had examined the gun before he carried it home; hut bein^ of
opinion, upon the whole evidence, that he had reasonable grounds to believe that it was
not loaded, he directed the jury, that if they were of the same opinion, they should acquit
liim: and he was acquitted. Fast. 265.
A gentleman came to town in a chaise, and before he got out of it fired his pistols in
the street, which by accident killed a woman. This was ruled manslaughter; the act
was likely to breed danger, ar\d manifestly improper. Benton's case, 1 Str. 481.
It has already been observed, that this kind of homicide is only when it happeneth upon
a man's doing a lawful act; for if the act be done in the prosecution of a felonious intention,
it will be murder. 1 Russ. 540. For it is a general rule in case of all felonies, that, when-
ever a man intending to commit one felony happens to commit another, he is as much
guilty as if he had intended the felony which he actually commits. J Hawk. c. 29. s. 11.
As, if A. shoot at the poultry of B., intending to steal them, and by accident kill a man,
this is murder. Fast. 258, 259.
Further, if there be an evil intent, though that intent extendeth not to death, it is mur-
der. Tims, if a man, knowing that many people are in the street, throw a stone over a
wall, intending only to frighten them, or to give them a little hurt, and thereupon one is
killed, this is murder; for he had an ill intent, though that intent extended not to death,
and though he knew not the party slain. 3 Inst. 57.
Although this species of homicide is not properly a man's crime, but his misfortune,
yet, because a human being is killed, and in respect of tl>e great favour the law has to
the life of man, and to the end that men should use all care, diligence, and circumspec-
tion, in all they do, that no hurt should come of their actions, a person convicted tliereof,
before the 9 Geo. IV. c. 31. s. 10. forfeited his goods; but by that statute he is exempted
from all punishment. See ante, chap. 38. note. 3 Burns' Justice, 800*. ed. 1845,
CHAPTER XL. [ 478 ]
OF MANSLAUGHTER EX NECESSITATE, AND FIRST SE DEFENDENDO.
I COME to those homicides that are ex necessitate, and this necessity-
makes the homicide not simply voluntary, but mixed, partly volun-
tary and partly involuntary, and is of two kinds.
1. That necessity, which is of a private nature.
2. That necessity, which relates to the pubhc justice and safety.
The former is that necessity, which obligeth a man to his own
defense and safeguard, and this takes in these inquiries, 1. What may
be done for the safeguard of a man's own life. 2. What may be done
for the safeguard of the life of another. 3. What may be done for
the safeguard of a man's goods. 4. What may be done for the safe-
guard of a man's house of habitation.
I. As touching the first of these, viz. homicide in defense of a man's
own life, which is usually styled se defendendo.
It is generally to be observed, that in case of any indictment or
charge of felony the prisoner cannot plead any thing by way of jus-
tification, as that he did it in his own defense, or per iuforfiniium,
but must plead 7wi quil/i/ ; and upon his trial the special n)aiter is
to be found by the jury, and thereujion the court gives judgment.
Homicide se defendendo is of two kinds.
1. Such, as tho it excusetli from death, yet it excuseth not the
478 HISTORIA PLACITORUM CORONiE.
forfeiture of goods, nor is the party to be absolutely discharged out
of prison, but bailed, and to purchase his pardon of course.
2. Such as wholly acquits from all kinds of forfeiture.
First, therefore, of common homicide se defendendo.
[479] Homicide ^e defendendo is the killing of another person
in the nece6\s«ry defence of himself against him that assaults
him.[l]
In this case of homicide se defendendo^ there are these circum-
stances observable.
1. It is not necessary that the party killed be the first aggressor
or assailant, or of his party, tho commonly it holds.
There is a malice between A. and B. they appoint a time and
place to fight, and meet accordingly, A. gives the first onset, B. re-
treats as far as he can with safety, and then kills Ji. who had other-
wise killed him; this is murder, for they met by cotnpact and design,
and therefore neither shall have the advantage of what they them-
selves each of them created.
There is malice between Ji. and B. they meet casually, ./5. assaults
B. and drives him to the wall, B. in his own defense kills A. this is
se dcfendendo^^w(\ shall not be heightened by the former malice into
murder or homicide at large, Copston''s case cited Crompt. de Pace
21. b. and Dalt. cap. 98. (a) for it was not a killing upon the account
of the former malice, but upon a necessity imposed upon him by the
assault oi A.
A. assaults B. and B. presently thereupon strikes./?, without flight,
whereof.^, dies, this is manslaughter in B. and not se defendendo,
43. Assiz. 31. but if B. strikes A. again, but not mortally, and blows
pass between them, and at length B. retires to the wall, and being
pressed upon hy A. gives him a mortal wound, whereof./?, dies, this
is only liomicide se defendendo, altho that B. had given divers other
(a) New Edit. cap. 150. p. 484.
[1] Foster divides homicide in self-defence into two classes; the first he calls justifiable
self-defence, tlic second self-defence culpable. In the former, the injured party may
repel force by force in defence of his person, habitation, or property, against one who
manifestly intendeth and endeavoureth by violence or surprise to commit a known felony
upon either. In these cases he is not obliged to retreat, but may pursue his adversary
till he findeth himself out of danger, and if in a conflict between them he happeneth to
kill, such killing is justifiable. Kel. 128, 129. The right of self-defence in these cases is
founded in the law of nature, and is not, nor can be, superseded by the law of society.
For before civil societies were formed, for mutual defence and preservation, the right of
self-defence resided in individuals; it could not reside elsewhere; and since in cases of
necessity, individuals incorporated into society cannot resort for |)rotection to the law of
the society, that law with great propriety and strict justice considereth them, as still, in
that instance, under the piotcction of the law of nature. In the latter — homicide, cul-
pable but excusable, or homicide se defevdrndo, upon chance medley — as when a person
engaged in a sudden aftVay, (juits the combat before a mortal wound given, and retreats
or flees as far as he can with safety, and then urged by mere necessity, kills his adver-
sary for tiie preservation of his own lilc. Foster, 273-7. 1 Hawkins, c. 29. s. 13.
'I'he general rule is that, in order to excuse a homicide, on the ground of self-defence,
it must clearly appear that it was a necessary act, in order to avoid destruction, or some
great bodily harm. •
HISTORIA PLACITORUM CORONA. 479
strokes, that were not mortal before he retired to the wall, or as far
as he could. Stamf. P. C. Lib. I. cap. 1. fol. 15. a. Dalt. cup. 98.
Crump. 28. a.
But now suppose, that ^. by malice makes a sudden assault upon
B. who strikes again, and pursuing hard upon j3. A. retreats to the
wall, and in saving his own life kills B. some have held this to be
murder, and not se defendendo, because A. gave the first assault,
Cromp. fol. 22. b. grounding upon the book of 3 E. 3. Itin. North.
Coron. 287. but Mr. Ballon., ubi supra, thinketh it to be ^e
defendendo, {b) tho A. made the first assault, either with or [480 ]
without malice, and then retreated; therefore the book of
3 E. 3. Coron. 284, 287. which occasioned the doubt, is to be ex-
amined, which is thus.
It seems to me, that li A. did retreat to the wall upon a real intent
to save his life, and then merely in his own defense killed B. that it
is se defendendo, and with this agrees Slamf. P. C. Lib. I. cap. 7.
fol. 15. a. But if on the other side A. knowing his advantage of
strength, or skill, or weapon, retreated to the wall merely as a design
to protect himself under the shelter of the law, as in his own defense,
but really intended the killing of B. then it is murder, or manslaugh-
ter, as the circumstance of the case requires, and that was the reason,
why the judges demanded of the jury 3 E. 3, whether he killed B.
of malice, or otherwise to save himself, and when the jury answered,
// was to save his life, he was remitted to prison to have his pardon
of course. 3 E. 3. Coron. 284. 287.[2]
2. In homicide se defendendo, there seems necessary some act to
be done by the party killing, for if he be merely passive, this will
make it only a killing per infortunium.
A. assaults B. who flies to the wall, or falls, holding his sword
knife, or pike in his hand, A. runs violently, or falls upon the knife
of B. without any thrust or stroke offered at him by B. and there-
upon dies, this is death per infortunium, and some have
said, that in this case A. is felo de se, de quo antea, vide [ 481 ]
Stamf. P. C. Lib. I. cap. 1. p. 16. 8,- libros ibi.
(6) The case here referred to in Dalton is the case of an affray, (which is likewise the
case put by Stamford) of this he says there was a difference of opinions, but delivers no
opinion of his own ; but as to the case here put by our author of a maliciovs assault,
which he afterwards mentions, he seems plainly to be of the contrary opinion, and to
think it murder; nor do I see any thing in Coron. 284, 287. that could occa.sion any
doubt about this matter, or any way relates to this case, for both those cases (which
seem to be but one and the same) were of an affray, in wliich he that struck first, was
the party killed, and the party killing struck not at all, till after he had fled as fur as he
could, and was necessitated to do it in his own defense; so that the reason assigned by
our author for demanding the question of the jury is grounded on a mistake; that,
which to me seems the reason of putting that question to the jury, is this, the jury had
found the fact specially, but had not drawn any general conclusion from it, the ques-
tion was therefore asked, tliat they might make the usual conclusion, unde dicuiit. quod
prcedictus, A. (the defendant) se defendendo prcedictum B. (the deceased) iiiterfecit, Sf
non per feloniam aut malitiam pracuffitatum, which was done accordingly; and there-
fore in the first of those places, viz, Cornn. 284. the usual conclusion being inserted, no
notice is taken of the question put to the jury.
[2j Foster, 277. 1 Hawk. c. 29. «. 17.
481 HISTORIA PLACITORUM CORON.E.
3. Regularly it is necessary, that the person that kills another in
his own defense, fly as far as he may to avoid the violence of the
assault before he turn upon his assailant; for tho in cases of hostility
between two nations it is a reproach and piece of cowardice to fly
from an enemy, yet in cases of assaults and affrays between subjects
under the same law, the law owns not any such point of honour,
because the king and his laws are to be the vindices injuriaruni,
and private persons are not trusted to take capital revenge one of
anotlier.[3]
But this hath some exceptions.
1. In respect of the person killing.
If a gaoler be assaulted by his prisoner, or if the sheriff or his
minister be assaulted in the execution of his office, he is not bound
to give back to the wall ; but if he kills the assailant, it is in law
adjudged se clef oidendo, iho he give not back to tlie wall ;[4] the
like of a constable or watchman, for they are ministers of justice,
and under a more special protection in the execution of their office,
than private persons. Co. P. C.p. 56. 9 Co. Rep. 68. b. Mackally^s
case.
But if the prisoner makes no resistance, but flies, yet the officer
either for fear that he, or some other of his party will rescue the
prisoner, strikes the prisoner, whereof he dies, this is murder, for
here was no assault first made by the prisoner, and so it cannot be
se dejendendo in the officer.[5]
And here is the diff^erence between civil actions and felonies.
If a man be in danger of arrest by a Capias in debt or trespass,
and he flies, and the bailifl' kills him, it is murder;[6] but if a felon
flies, and he cannot be otherwise taken, if he be killed, it is no felony,
[3] State V. Wells, 1 Cuxe, 424. U S. v. Trovers, 2 Wlieeler's C. C. 498. 507. Hay.
don V. The State, 4 Blackford, 547. People v. Gurretson, 2 Wheeler's C. C. 348. People
V, Anderson, idem, 408.
[4| 3 Inst. 56. 1 Hawk. c. 28. s. 11. c. 29. 16. MS. Sum. 36, 37. Foster, 321.
[5] So long as a party, liable to arrest, endeavours peaceably to avoid it he may not
be killed; but whenever, by his conduct, he puts in jeopardy the life of any attempting
to arrest him, he may be killed, and the act will be excusable. State v. Anderson, 1
HiWs S. C. R. 327. See The State v. Rutherford, 1 Hawks. 457. Selfridge's Trial,
160. R. v. Haworth, 1 Moody, C. C. 207. R. v. Willia7ns, ibid. 387. R. v. Langden,
R. Ss R. 228.
It has been said that perhaps the killing of dangerous rioters may be justified by any
private persons who cannot otherwise suppress thern, or defend themselves from them,
inasmuch as every private person seems to be authorized by the law to arm himself
for the preservation of the peace. 1 Hawk. P. C. c. 28. s. 14, and see Foster, 272.
It was so resolved by all the judges in Easter Term, 39 Eliz. though they thought it
more discreet for every one in such a case to attend and assist the king's officers in pre-
serving the peace. And certainly, if private persons interfere to suppress a riot they
must give notice of their intention. See Rex v. Finney, 5 C. t^ P. 254. Reg. v. Neale,
9 C. c^ P. 431. The charge of Tindai., C. J. to the Bristol Grand Jury, 1832. 5 C. & P.
261, and charge of King, P. to the Philadelphia Grand Jury, 1844. 4 Penn. Law J. 29.
The latter is a practical and accurate statement of the law on this subject.
[6] 1 Roll. R. 189. Foster, 271. Rex v. Browning, 1 East, P. C. 312. Rex v. Borth.
wick, 1 Doug. 207. M. S. Sum. 37. If the warrant was irregular and void, the killing
would be only manslaughter. Rex v. Stockley, 1 East, P. C 210. Hoiisia v. Barrow,
6 T. R. 122, R. v. Winnock, 8 T. R. 454. R. v. Hood, Moody, C. C. 281.
PIISTORIA PLACITORUM CORONA. 481
and in that case the officer so killing forfeits nothing, but the person
so assaulted and killed forfeits his goods.
2. In relation to the person killed.
If a thief assaults a true man either abroad or in his house to rob
or kill him, the true man is not bound to give back, but may kill the
assailant, and it is not felony. Co. P. C. p. 56. [7]
3. In respect of the manner of the assault.
If ^. assault B. so fiercely, that B. cannot save his life [482]
if he give back, or if in the assault B. fall to tlie ground,
whereby he cannot fly, in such case if ^. kill ^. it is se defendendo,
Co. P. C.p.56. but now here will be occasion to resume the former
debate, where the first assailer may be said to kill the assailed se
uefendendo.{S']
If A. assault B. and B. thereupon re-assault ji. and A. really
flies to avoid the assault of B. who pursues him, and then A. being
driven to the wall turns again and kills B. it seems this may be se
defendendo, as hath been said ; for it appears de facto, that ji. fled
from the assault of ^. till he could fly no farther.
But if A. assaults B. first, and upon that assault B. re-assaults Ji.
and that so fiercely, that A. cannot retreat to the wall or other noti
ultra without danger of his life, nay, tho j1. falls upon the ground
upon the assault of B. and then kills B. this shall not be interpreted
[7] Foster, 273. Kel. 126. 128. 1 Hawk. P. C. c. 28. s. 21. 24, When a known felony
is attempted upon the person, be it to rob or murder, the party assailed may repel force
by force; and even his servant attendant on him, or any other person present, may inter-
pose for preventingf mischief, and if death ensue, the party so interposingf will be justi-
fied. 1 East, P. C.271. Com. v. Riley, Thacher's C. C. 471. Selfridge's case, 160.
Commonwealth v. Daily, 3 Pa. L. I. 153.
The danger must be actual and urgent, U. S. v, Vigol, 2 Dallas, 346. No contingent
necessity will avail; and when the pretended necessity exists in tlie, as yet, unexecuted
machinations of another, it forms no defence. People v, McLeod, 1 Hill, 377. State v.
Morgan, 3 Iredell, 186.
In Tennessee it has been ruled, that if a man, though in no danger of serious bodily
harm, through fear, alarm, or cowardice, kill another under the impression that great
bodily injury is about to be inflicted on him, it is a case of homicide in self-defence.
Granger v. The State, 5 Yerger, 459.
In North Carolina, the safer and better doctrine is, that the belief that a person designs
to kill one, will not reduce the killing him below murder, unless he is making some attempt
to execute his design, or, at least, is in an apparent situation to do so, and thereby induces
the reasonable belief that he intends to do so immediately. State v. Green, 4 Iredell, 409.
The killing of a man on the highway is not justifiable homicide, unless there was an
intention on the part of the person killed, to rob or murder, or do some dreadful bodily
injury to the person killing; or, in other words, the conduct of the party must be such as
to render it necessary on the part of the party killing, to do the act in self-defence. Reg.
V. Bull, 9 Car. Sf P. 22,
A well-grounded belief that a felony is about to be perpetrated, will extenuate a
homicide committed in prevention of it, though the defendant be but a private citizen;
but not a homicide committed in pursuit, unless special authority be given. State v,
Rutherford, 1 Hawks. 457. Selfridge's Trial, 160. R. v. Haworlh, 1 Mood. C. C. 207.
R. V. Williams, ibid, 387. R. v, Largden, R. Sf R. 228,
But the slayer, in such cases, must not only -show that a homicide was actually com-
mitted, but tliiit he avowed his object, and that the felon refused to submit, and that the
killing was necessary to make the arrest. State v. Roane, 2 Dtv. 58.
[8] 4 Bl. Com. 185. 3 Inst. 56, 1 Hawk. P. C. c. 29. s. 14.
482 HISTORIA PLACITORUM CORONA.
to be se defendendo,{c) but to be murder, or simple homicide, accord-
ing to the circiimstatices of the case, for otherwise we should have
all cases of murders or manslaughters by way of interpretation turned
into se defendendo.
The party assaulted indeed shall, by the favourable interpretation
of the law, liave the advantage of this necessity to be interpreted as
a fiight(^) to give him the advantage of se defendendo, when the
necessity put upon him by the assailant makes his flight impossible ;
but he that first assaulted hath done the first wrong, and brought
upon himself this necessity, and shall not have advantage of his own
wrong to gain the favourable interpretation of the law, that that
necessity, which he brought upon liimself, should, by way of inter-
pretation, be accounted a flight to save himself from the guilt of mur-
der or manslaughter.[9]
If./?, after the assault, had really and bond fide fled from
[|483] B. or that they had been parted by by-standers, that had
given a kind of interruption to the affray, and a declining of
any farther aftray by B. and therefore when B. pursues him to kill him,
and t^. after his flight, upon necessity of saving his life, kills B. this
is apparent to be se defendendo; but when it is done altogether with-
out any interval of flight or parting, and B. that was first assaulted,
gains the present advantage by his strength, courage or fortune, to
preclude the flight of./?, and then A. kills him, this seems to be man-
slaughter, and not se defendendo.
And it must be observed, that the flight to gain the advantage of
se defendendo to the party killing, must not be a feigned flight, or a
flight to gain advantage of breath, or opportunity to fall on a fresh,
as fighting cocks retire to gain advantage, but it must be a flight from
the danger, as far as the party can, either by reason of some wall,
ditch, company, or as the fierceness of the assailant will permit.[10]
In Fleet street A. and B. were walking together, B. gave some
provoking language to Jl. who thereupon gave B. a box on the ear,
they closed; B. was thrown down, and his arm broken, he runs to his
brother's house presently, which was hard by, C his brother, taking
the alarm, came out with his sword drawn and made towards Jl.
who retreated ten or twelve yards, C. pursued him, Ji. drew his
sword and made a pass at C and killed him; A. being indicted at
(c) Because his fall not being voluntary, as a flight is, it does not appear, that he
declined fighting, so that the party first assaulted cannot safely quit the advantage he
has got.
(t?j Not that the law esteems this necessity to be a flight, but the party not having
opportunity of flying, the law does not require it of him; but excuses him in the same
manner, as if he had fled.
[9] I Ihivok. c. 20. s. 17. On this subject jMr. East says: " I think there is great diffi-
culty in applying the distinction taken by Lord Hale and Hawkins against him who
makes the first assault, to the case of mutual combat by consent, though upon a sudden
occasion, when neither of the parties makes an attack till the other is prepared; because
in these cases it maticrs not who gives the first blow; it forms no ingredient in the
merits of the question." 1 East, P. C. 281-2.
[10] Foster, 277. 4 Bl. Com. 1B5.
HISTORIA PLACITORUM CORONiE. 433
Newgate sessions for murder, the court directed the jury upon the
trial to find this manslaughter, not murder, because upon a sudden
falling out; not se defendendo, partly because ./?. made the first breach
of the peace by striking B. and partly because, unless he had fled as
far as might be, it could not, by way of interpretation, be said to be
in his own defense: and it appeared plainly upon the evidence, that
he might have retreated out of danger, and his stepping back was
rather to have an opportunity to draw his sword, and with more
advantage to come upon C. than to avoid him; and accordingly, at
last, it was found manslaughter 1671, at Newgaie-lll]
II. I come to the second consideration, namely, what the
offense is, if a man kill another in the necessary saving of [ 484 ]
the hfe of a man assaulted by the party slain.
- ^. assaults the master, who flies as far as he can to avoid death,
the servant kills Ji. in defense of his master; this is homicide defen-
dendo of the master, and the servant shall have a pardon of course,
21 H.l. 39. a. but if the master had- not been driven to that extre-
mity, it had been manslaughter at large in the servant, if he had no
precedent malice in him. Plowd. Com. 100.
The like law had been for a master killing in the necessary defense
of his servant, the husband in the defense of the wife, the wife of the
husband, the child of the parent, or the parent of the child, for the
act of the assistant shall have the same construction in such cases, as
the act of the party assisted should have had, if it had been done by
'himself, for they are in a mutual relation one to another.[12]
\i Ji. and B. and C. be of a company together, and walking in the
field C. assaults B. who flies, C. pursues him, and is in danger to kill
him, unless present help, Ji. thereupon kills C. in defense of the hfe
of B. it seems that in this case of such an inevitable danger of the life
of B. this occision of C. by Ji. is in nature of ^e defendendo, but then
it must appear plainly by the circumstances of the case, as the
manner of the assault, the weapon with which C. made the assault,
^•c. that the imminent danger of the life of B. be [apparent and evi-
dent.[13]
And the reason seems to be, because every man is bound to use
all possible lawful means to prevent a felony, as well as to take the
felon, and if he doth not, he is liable to a fine and imprisonment,
therefore if B. and C, be at strife, »/5, a by-stander, is to use all lawful
means that he may, without hazard of himself, to part them; and the
[11] Before a person can avail himself of the defence, that he used a weapon in defence
of his life, he must satisfy the jury that that defence was necessary ; that he did all he
could to avoid it ; and that it was necessary 1o protect his own life, or to protect himself
from such serious bodily harm, as would give him a reasonable apprehension that his
life was in immediate danger. If he used the weapon, having no other means of resist-
ance, and no means of escape, in such case, if he retreated as far as he could, he would
be justified. Reg. v. Smith, 8 C. 4- P. 160. See Reg. v. Bull, 9 C. ^ P. 22.
[12] 4 Bl. Com. 182-184. 1 J?uss. on Cr. 542. Foster, 274.
[13] This rule does not extend to felonies without force, nor to misdemeanors of any
kind. I Hawk. P. C. c.28. s. 23. 4 Bl. Com. 180. 1 East, P. C. 290.
VOL. I. — 43
484 HISTORIA PLACITORUM CORONA.
very relation of acquaintance, and mntnal society between A. B.
and C. seems to excuse the fact of Jl. in the necessary safeguard of
the \\{q oi B. from the crime of simple homicide; tamen quaere.
If Ji. be travelling, and B. comes to rob him, if C. falls into the
company, he may kill B. in defense of A. and therefore much more
if he come to kill him, and such his intent be apparent, for
\_ 485]] in such case of a felony attempted, as well as of a felony
committed, every man is thus far an officer, that'at least his
killing of the attempter in case of necessity puts him in the con-
dition oi se defendendo in defending his neighbour; but of this more
hereafter.
A. makes an assault upon B. a woman or maid with intent to
ravish her, she kills him in the attempt, it is se defendendo because
he intended to commit a felony. Bait. cap. 98. p. 250,[14]
And so it is if C. the husband or father of B. had killed him in
the attempt, if it could not be otherwise prevented ; but if it might
be otherwise prevented, it is manslaughter; therefore circumstances
must guide in that case. [15]
III. I come to consider, what the offense is in killing him that
takes the goods, or doth injury to the house or possession of
another.
And herein there will be many diversities, as first, between a
trespassable act and a felonious act, and between felonious acts them-
selves.
If J2. pretending a title to the goods of B. takes them away
from B. as a trespasser, B. may justify the beating of A. but if he
beat him so that he die, it is neither justifiable, nor within the
privilege of se defendendo, but it is manslaughter. Dalt. cap. 98.
jo. 251.[16].
Ji. is in possession of the house of B. B. endeavours to enter
upon him, Jl. can neither justify the assault nor beating of B. for B.
had the right of entry into the house, but if A. be in possession of a
house, and B. as a trespasser enters without title upon him, A. may
not beat him, but may gently lay his hands upon him to put him
out, and if B. resists and assaults A. then A. may justify the beating
of him, as of his own assault.
But li A. kills him in defense of his house, it is neither justifiable,
nor within the privilege of se defendendo, for he entered only as a
trespasser, and therefore it is at least common manslaughter: this
was HarcourVs case Crumpt. 27. a. who being in possession of a
house by title, as it seems, A. endeavoured to enter and shot an
arrow at them within tlie house, and Harcourt from within
[ 486 ~\ shot an arrow at those that would have entered, and killed
one of the company, this was ruled manslaughter, 5 Eliz.
[14] M. S. Sum. 39.
[15] Foster, 274 ; Handock v. Baker, 2 B. Sf P. 265.
[16j State V. Murgan, 3 Iredell, 186; Vom. v. Drew, 4 Mass, 391; Claxton T. 2%<
State,2 Humphrey, 181.
HISTORIA PLACITORUM CORONA. 486
and it was not se defendendo, because there was no danger of his
life from them without.
But if ^i. had entered into the house, and Harcourt had gently-
laid his hands upon him to turn him out, and then ^. had turned
upon him, and assaulted him, and Harcourt had killed him, it had
been ^e defendendo^ and so it had been if J2. had entered upon
him, and assaulted him first, tho he intended not to kill him, yet if
Harcourt had thereupon killed •/?. it had been only se defendendo,
and not manslaughter, tho the entry of ^1. was not with intent to
murder him, but only as a trespasser to gain the possession, 3 E. 3.
Coron. 305. Cramp. 27 b. and it seems to me in such a case Har-
conrt, being in his own house, need not fly as far as he can, as in
other cases of se defendendo, for he hath the protection of his house
to excuse him from flying, for that would be to give up the posses-
sion of his house to his adversary by his flight. [17]
A. commits adultery with B. the wife of C who comes up and
takes them in the very act, and with a staff" kills the adulterer upon
the place; this is manslaughter, and neither murder, nor under the
privilege of se dejendendo: but if J9. had been taken by C. in the
very attempt of a rape upon the wife, and she crying out, her hus-
band had come and killed Jl. in the act of his ravishment, it had
been within the privilege of se defendendo, because it was a felony;
the former case was adjudged manslaughter by the court, B. R. M.
23 Car. 2.{d)
Now concerning felonies, as there is a difference between them
and trespasses, so there is a difference among themselves in relation
to the point of se dejendendo.
'If a man come to take my goods as a trespasser, I may justify the
beating of him in defense of my goods, as hath been said ; but if I
kill him, it is manslaughter.
But if a man come to rob me, or take my goods as a felon, and in
(rf) Manning's case, Raym. 212.
When he was to be burnt in the hand, the court directed it to be done gently, because
they said there could not be a greater provocation.
[17] As the killing in these cases is only justifiable on the ground of necessity, it can-
not be justified unless all other convenient means of preventing the violence are absent
or exhausted; thus a person set to watch a yard or garden, is not justified in shooting'
one who comes into it in the night, even if he should see him go into his master's hen-
roost ; for he ought first to see if he could not take measures for his apprehension ; but
if, from the conduct of the party, he has fair ground for believing his own life in actual
and immediate danger, he is justified in shooting him. R. v. Scully, 1 C. Sf P. 319.
Nor is a person justified in firing a pistol on every forcible intrusion mto his house at
sight; he ought, if he have reasonable opportunity, to endeavour to remove him without
having recourse to the last extremity. Mead's case, 1 Lew. 184.
And it would seem that in no case is a mati justified in intentionally taking away the
life of a mere trespasser, his own life not being in jeopardy; he is only protected from
the consequences of such force as is reasonably necessary to turn the wrong-doer out.
A kick has been held an unjustifiable mode of doing so; Child''s case, 2 Lew, 214;
throwing a stone has been held a proper mode. HinchcUffe's case, 1 Lew. 161.
487 HISTORIA PLACITORUM CORONA. .
my resistance of his attempt I kill him, it is se defendendo at least,
and in some cases not so much.
At common law, if a thief had assaulted a man to rob him, and
he had kild the thief in the assault, it had been se defendendo, but
yet he had forfeited his goods, as some have thought, 1 1 Co. Rep.
d>^ h. tho other books be to the contrary. 26 Jissiz. 32.
But if Ji. had attempted a burglary upon the house of B. to the
intent to steal, or to kill him, or had attempted to burn the house of
B. MB. or any of his servants, or any within his house had shot and
kild A. this had not been so much as felony, nor had he forfeited
ought for it, for his house is his castle of defense, and therefore he
may justify assembling persons for the safe guard of his house. 21
H.1.2,% a.W Co. Rep. 82. b. 5 Co. Rep. 9\.b. 26 ^ssiz. 23. S E. 3.
Coron. 330.
But otherwise it is, as hath been said, in case of a trespassable entry
into the house claiming a title, and not to commit felony.
But now by the statute of 24 H. 8. cap. 5. " If any person attempt
any robbery or murder of any person in or near any common high-
way, cartway, horseway, or footway, or in their mansion houses, or
do attempt to break any mansion-house in the night-time, and shall
happen to be kild by any person or persons, &c. (tho a lodger or
servant) they shall upon their trial be acquitted and discharged in
like manner, as if he had been acquitted of the death of such person, '^
JP. 15. Car. 1. Cooper's case.(e)
This statute was to remove a doubt, and was declarative and
enacting, and puts the killing of a robber in or near the highway, <§'c.
in the same condition with one, that intends to rob or murder in the
dwelling-house, and exempts both from forfeiture, and hath settled
the doubt.
And upon this statute it was, that when there was malice between
^. and B. and they had fought several times, and after met suddenly
in the street near Ludgate, and Jl. said he would fight him, B.
declined it, and fled to the wall, and called others to witness it, and
Jl. pursued him, and struck him first, and B. in his own defense kild
him, he was acquit from any forfeiture by the statute of 24 H. 8.
cap. 5. 15 Eliz. Cromp. 27. b. Copstori's case: but upon
[] 488 ] this statute these things are observable.
1. It extends not to the case of a bare trespassable entry
into a house, but only to such an entry or attempt as is intended to be
for murder or robbery, <§'c. or some such felony, and therefore the
cases of trespasses, either in houses or near highways, are left is
before.
2. It seerns, that it extends not to indemnify the killing of a felon,
.where the felony is not accompanied with force, for it speaks of rob-
bery, therefore the killing of one that attempts to pick my pocket, is
not within the act, for there is ^o such necessity ; indeed, if any felon,
after a felony committed, doth resist those, that endeavour to appre-
(e) Cro. Car. 544.
HISTORIA PLACITORUM CORON.E. 488
hend him, or fly, and be kild, this killing is no felony, but that is
upon another account, for this statute hath relation only to killing
before, or in the felony committed, not «/?er.[lS]
3. It speaks only of breaking the house in the night-time, so that
it seems it extends not to a breaking the house in the day-time,
imless it be such a breaking, as imports, with it apparent robbery, or
an intention, or attempt thereof.
4. Tho the statute speaks not of burning of houses, yet he, that
attempts the wilful burning of a house, and is kild in that attempt, is
free from forfeiture, without the aid of this staute, as appears 26
Jisaiz. 23.
By the judicial law, Exod. xxii. 2, 3. "If a thief be found break-
ing up, and he be smitten that he die, no blood shall be shed for him,
but if the sun be risen upon him, there shall blood be shed for him,
for he should make restitution, and if he have nothing, he shall be
sold for his theft:" and by the Roman law of the twelve tables,
Fur manifesto fur to deprehensiis, siaut, cutn facer et fur turn. , nox
esset, aitt inter-diu se telo, cum deprehenderetur, defenderet, im-
pune occideretur :{f) upon the latter of these laws the civilians and
canonists have made many curious d\s{\nci\ons,quas vide apudOovdiX-
ruviam, Tom. I. Par. 3, de homicidio ad defensionem com-
misso ;{g) and upon the former the Jewish Rabbles have [489]
made the like, quas vide apiid Selden de jure gentium.
But as the laws of several nations, in relation to crimes and pun-
ishments differ, and yet may be excellently fitted to the exigencies
and conveniences of every several state, so the laws of England
are excellently fitted in this and most other matters to the conve-
niencies of the English government, and full of excellent reason, and
therefore I shall not trouble myself about other laws than those of
England.{h)
IV. There remains yet one other particular, namely, the killing a
malefactor, that doth not yield himself to justice upon pursuit.
If a person be indicted of felony and flies, or being arrested by
warrant or process of law upon such indictment escapes and flies,
and will not render himself, whereupon the officer or minister cannot
take him without killing of him, this is not felony, neither shall the
killer forfeit his goods, or be driven to sue forth his pardon, but upon
(/) ^^S' ^*^' IV. tit. 2. ad leg. Aquil. I. 4. § 1. Agel. Lib. XI. cap, 18. vide supra cap.
1. p. 3 Sf 6.
ig) p. 561. Edit. Antwerp, 1614.
{h) By the common law, Qui latronem occide.rit nocturnum vel diuturnum, non tene-
titr, si aliter periculum evadere non possit, tenetur tamen, si possit. Bract. Lib. 111. de
corona, fol. 15.5. a.
Vide LL. Withred. Edit, ^^^ilk. p. 12. LL. Lim, I. 16. 20, 21. 35. LL. Ethelslani,
in. LL. Canuti,l.59.
[18] 4 Bl. Com. 180. But, says Mr. East, if one pick my pocket, and I cannot otiier-
wise take him than by killings him, this falls under the general rule concerning the
arresting of felons. 1 East, P. C. 273.
489 HISTORIA PLACITORUM CORONA.
his arraignment shall plead 720/ gidlly. and accordingly it ought to
be found by the jury. 3 E. 3. Coron. 288.
! But if he may be taken without such severity, it is at least man-
slaughter in him, that kills him, therefore the jury is to inquire, whe-
ther it were done of necessity or not. 22 *dssiz. 55 Stamf. P. C.
Lib. I. cap.5.ful. 13. b.
And the same law it is, if »^. commits felony and flies, or resists
the people, that come to apprehend him, so that he cannot be taken
without killing him, such killing is not felony, nor does the person,
that did it, forfeit any thing, tho J3. were not indicted, nor the per-
son, that did it, had any warrant of any court of justice, for in such
case the law makes every person an otiicer to apprehend a feloii.
22 E. 3. Coron. 261.
And the same law it is, if he be taken, and in bringing to the goal
he breaks away, and the people of the vill pursue and cannot take
him, unless they kill him, those, that kill him, upon their arraign-
ment shall be acquitted of the felony, but yet the township
[]490 ] shall be amerced for the escape, and the person kild shall
forfeit his goods upon the flight found. 3 E. 3. Cor. 328. 340.
and by some it hath been held he shall forfeit the issues of his lands,
till the year and day be past. 3 E. 3. Coron. 290.
If t/^. be suspected by B. to commit a felony, but in truth he com-
mitted none, neither is indicted, yet upon the offer to arrest him by
B.he resists or flies, whereby B. cannot take him without killing
him, and B. kill him, if in truth there were no felony committed, or
B. had not a probable cause to suspect him, this killing is at least
manslaughter, but if there were a felony committed, and B. hath cause
to suspect t/?, but in truth »^. is not guilty of the fact, tho upon this
account B. may justify the imprisonment of Ji. yet qustre if B.
kill Ji. in the pursuit, whether this will excuse him from man-
slaughter.
But if a felony be committed, but not by A. but by some other,
and B. hath a warrant from a justice of peace to apprehend A. or
that a hue and cry comes to B. the constable of Z). to apprehend Ji.
who endeavours to escape, or stands in resistance, so that he cannot
be taken without killing him, it seems the killer is excused from fe-
lony, tho A. were not indicted; vide 'pro hoc 3 E. 3. Coron. 289. and
the reason is because he is bound by law to execute his warrant, or
pursue the party upon hue and cry and to apprehend him, and is in-
dictable for a contempt if he doth not, and so it differs from the for-
mer case, for no man is bound to suspect another, but it is the act of
his own judgment, and so he is merely his own warrant, and he may
not adventure so far as the death of the party, unless he be sure he
was the off'ender, tho he may imprison him, for thereupon he shall
be brought to his trial; scd de his vide Slamf. P. C. Lib. I. cap. 5.
Crompt.fol. 30.
And it is to be observed, that whether the party rescues himself
after he is taken, and ffy or resist, or whether lie ffy or resist before
his taking, and be kild in the pursuit, it is all one, the killer forfeits
HISTORIA PLACITORUM CORONA. 491
nothing; but the person kild forfeits his good5?, tho he were kild before
attainder, upon an inquisition either by the coroner, or petit jury
finding his flight. 3 E. 3. Coron. 288. 328.
By the statute of 21 E. 1. de malefactoribns in pr/rcis, if a parker,
forester, or warrener, find any trespassers wandering in his park,
forest, or warren, intending to do damage therein, and they will not
yield to the forester after hue and cry made to stand to the king's
peace, but fly or defend themselves, whereupon they are kild, the
parker, forester, or warrener, or their assistants shall not lose life or
limb for the same, but shall enjoy the king's peace, so it be not done
upon any former malice or evil will; but to make good such justifi-
cation by a parker, forester, or warrener, there are these things re-
quisite: 1. It must be a legal forest, park, or warren, or chace, (for a
chase includes warren) and not a bare warren, park, 8,'c. in reputa-
tion, for if a man inclose a piece of ground, and put deer or conies
in it, this makes it not a park or warren without a prescription time
out of mind, or the king's charter. 2. If a man have a park within
a forest, where he may hunt, and the forester kills the purloin-man,
or his servant hunting in the purloin, this doth not excuse the forester
from murder or manslaughter, as the circumstances of the case are.
Dyer 327. a.
A!id note, that in all these cases of homicide by necessity, as in
pursuit of a felon, in killing him that assaults to rob, or comes to burn
or break a house, or the like, which are in themselves no -felony, the
matter may be specially presented by the grand inquest, (quod vide
3 E. 3. Coron. 305. 289. and several other places,) or by the coro-
ner's inquest. And thus it was done in Holme's case, 26 EUz.
Crompt. 28. and in the case of a servant of justice Croke, who com-
ing with the judge out of the circuit was assaulted in the highway,
and he kild the assailant, and the matter presently specially found
by the coroner's inquest, whereby he was discharged by the statute
of 24 H. 8. cap. 5. and in these cases upon this special presentment
the party shall be presently discharged without being put to plead,
but then this acquittal by preserUment is no final discharge, for he
may be indicted and arraigned again afterwards, if the matter of the
former indictment be false ; but if in such a case the present-
ment of the grand inquest or coroner's inquest be simply of [ 492 ~\
murder or manslaughter, and ther^ipon he is arraigned and
tried, and this special matter given in evidence, he shall be acquitted
thereupon, for upon these special matters proved in evidence, he is
not guilty, for it is no felony, and this acquittal is a perpetual dis-
charge and bar against any other indictment for the same death;
therefore this latter way is more advantageous in the conclusion for
the party, than a special presentment. Cromp. fol. 28. Holme's
case. [19]
[19] Lord Bacon says, "if divers be in danger of drovvninir, by the casting away of some
boat, or barque, and one of them get to some plank, or on the boat's side to keep iiimself
492 HISTO^IA PLACITORUM CORONA.
above water, and another to save his life thrust him from it, whereby he is drowned;
tiiis is neither se defendendo, nor by misadventure, but justifiable." Max. Reg. V. •
Later writers speak of this as homicide se defendendo.
The only case directly involvinjr this doctrine is that of U. S. v. Holmes, C. C. U. S.
for Eastern District, of Penn., March, 1842 — an indictment for manslaughter. The defen-
dant was a mariner, and tlie deceased a passenger in a ship wrecked and abandoned at
sea ; ihe crew and passengers embarking in boats, and witiiin twenty-four hours after the
abandonment the danger of destruction by tempest being imminent, the prisoner, together
with the remaining sailors, proceeded to throw overboard tliose passengers whose remo-
val seemed necessary for the common safety, among whom was the deceased. Relief
shortly after came; but the evidence conflicted as to whctiier the boat could have lield
out in its original crowded state even during that short period. The question, therefore,
whether, with no prospect of aid, acting under the circumstances which surrounded the
defendant at the time the act was committed, such necessity existed as would justify the
homicide, was one of great doubt. But a new principle was introduced into the case by
Judge Baldwin, who presided. Holding, that in such an emergency, there was no mari-
time skill required which would make the presence of a sailor of more value than that of
a passenger, he maintained, that in such case, it being the stipulated duty of the sailor
to preserve the passenger's life at all hazards, if a necessity arose in which the life
of one or the other must be lost, the life of the passenger must be preferred. If, on
the other hand, the crew was necessary, in its full force, for the management of the
vessel, the first reduction to be made ought to take place from among the passen.
gers. But under all circumstances, it was held, the proper method of determining who
was to be the first victim out of the particular class, was by ballot. The defendant,
under the charge of the court, was convicted. U, S. v. Holmes, Pamphlet, Phila., 1842.
Sir William Russell observes, that if the commission of treason may be extenuated by
the fear of present death, and while the party is under actual compulsion, (I East, P. C.
70.) there seems to be no reason why homicide may not also be mitigated upon the like
consideration, of human infirmity; though in case the party might have recourse to the
law for his protection from the threats used against him, his fears will certainly furnish
no excuse for*committing the murder. 1 East, P. C. 294. It must further be observed,
that as the excuse of selt-defence is founded on necessity, it can, in no case, extend be-
yotid the actual continuance of that necessity by whicli alone it is warranted; 1 East,
P. C. 293. for if a person assaulted does not fall upon the aggressor, till the affray is
over, or when he is running away, this is revenge, and not defence. 4 BL Com. 293.
I Russ. on Cr. 665. See Foster, 271. 277. 318.
CHAPTER XLI.
CONCERNING THE FORFEITURE OF HIM, THAT KILLS IN HIS OWN
DEFENSE, OR PER INFORTUNIUM.
If a man kill another by misfortune, yet he sliall forfeit his goods
in strictness of law, in respect o^ the great favour the law hath to
the life of a man, and to the end that men should use all care, dili-
gence and circumspection in all they do, that no such hurt ensue by
their actions.
But if the occision or killing can by no means be attributed to the
act of the person, but to the act of him, that is kild, there it seems,
llio the instrument of the death is forfeited as a deodand, there follows
no forfeiture of the goods of the person : for instance.
If ^. shoots at rovers, as he may lawfully do, if B. after the
arrow is delivered runs into the place, where the arrow is to fall, of
his own accord, and so is kild, this seems to be such an iiiforliiniuni,
that affects not */l. with the loss of goods, for it was not his act that
HISTORIA PLACITORUM CORONtE. 492
contributed to the death of B. but the wilful or improvident act of
B. himself; qunere.
If Jl. assaults B. and B, in his own defense kills %8.. yet [ 493 ]
B. forfeits his goods.
If the coroner's inquest find the killing specially se. defendendo,
yet the court shall arraign him, and try him, whether it were se
defendendo, before he shall have his pardon of course. 4 H.l.l <§• 2.
But if B. having a pitch-fork in his hand, ^. assaults B. so
fiercely, that he runs upon the pitch-fork of ^., B. offering no thrust
at all against t/?. (tho this be a very difficult matter of fact to sup-
pose, yet if the fact be supposed to be so) it seems B. forfeits no
goods, because it was the act of ^. himself, and some have said
rather, that in that case Jl. is felo de se, and forfeits his goods, de
quo supra, 44 E. 3. 44. Coron. 94. tho 3 E. 3. Coron. 286. saith his
goods are forfeit in that case.
But where the killing of a man in his defense is in the law no
felony, but the party upon his arraignment upon the special matter
is to be found or judged simply not guilty, there is no forfeiture, but
the party ought to be absolutely acquitted, unless he fled, and it be
found, that fugam fecit, for that is a distinct forfeiture, altho the
party be not guilty of the fact, and therefore always the jury is
charged to inquire, whether the prisoner be guilty or not guilty, and
if not guilty, whether he fled for the same, and if he fled, then to
inquire also of his goods and chatties.
And the cases, where the prisoner is not to forfeit any goods or
chatties, but is to be absolutely acquitted, if he kills in his own de-
fense, are before remembered, and I here recollect them.
1. He that kills a thief, that attempts to rob him.
2. He that kills a person, that attempts to rob or kill him m or
near the highway, or in the mansion of the killer, by the statute of
24 H. 8. cap. 5. and this, tho he hath not yet actually robbed. 3^3.
Coro7i. 330.
3. He that kills a person, that attempts wilfully to fire his house,
or to commit burglary, tho he hath not actually broken or fired the
house. 26 Jissiz. 23. 29 t.dssiz. 23. if he came with that purpose.
4. An officer or bailiff, that in execution of his office kills
a person, that assaults him, tho the officer gives not back [494]]
to the wall, for the officer is under the protection of the
law, and the books tell us it is not felony in such case. Co. P. C. p. 65.
5. The same law is of a constable, that commands the king's peace
in an affray, and is resisted.
6. He that kills a felon, that resists, ox justiciari se non permit-
tit, and the like of a constable or watchman, that is charged to take
a person charged with felony, or attempts to take him upon hue and
cry, if the person so charged resist or fly, and cannot be otherwise
taken, tho perchance he be iiuiocent, for the reason before given, and
this either before or after the arrest.
7. If there be a great riot, or rebellious assembly, how far the
494 HISTORIA PLACITORUM CORONA.
killing of such persons in suppressing of them is criminal is to be
seen.
By the statute 1 Mar. cap. 1 2. " If any persons to the number of
twelve or more shall intend, practise, or put in ure to overthrow pales,
hedges, ditches, or inclosures of parks or other grounds, banks of
fish-ponds, conduit-heads, or pipes, or to pull down dove-cotes, barns,
houses, mills, or burn stacks of corn, or abate rents or price of victual
or corn, and being required by the justices of peace, sheriff of the
county, mayors, bailitfs, or head officers of cities, by proclamation in
the queen's name to retire to their homes, shall remain together one
hour after such proclamation, or shall put in ure such things, they
shall be adjudged felons.
"And if any persons above the number of two shall unlawfully
assemble to put in ure the things aforesaid, that it shall be lawful
for the sheriff, justices of peace, mayors, bailiffs, and every other
person having commission from the queen to raise force in manner
of war, to be arrayed to suppress and apprehend the rioters, and if
the persons so unlawfully assembled after command and request by
proclamation shall continue together, and not return to their habi-
tations, and if any of them happen to be kild, maimed or hurt in or
about the suppressing or taking them, the sheriff, justice,
\_ 495 ~\ mayor, SfC. and their assistants, shall be discharged and
unpunishable for the same against the queen and all other:"
this act was continued by the statute of 1 Eliz. cap. 16. during her
life.(«)
And it seems, as to this manner of killing rioters, that resist the
ministers of justice in their apprehending, it is no other but what
the common law allows, or at least what the statute of 13 H. 4.
cap. 7. implicitly allows to two justices of the peace, with the
sheriff or under-sheriff of the county, by giving them power to
raise the posse comitalics, if need be, and to arrest the rioters, and
they are under the penalty of 100/. if they neglect their duty hereim
And with this agrees Mr. Dalton, cap. 46. /;. 115., (b) cap 98.
p. 249. ,(c) and Crompt. de Pace 62. b. " Nota, que viscount & jus-
tices de peace point prendre tants des homes in barneys, quant sont
necessary & guns &c. & tuer les rioters, sils ne voilent eux rendre,
come fuit pris in case de Drayton Basset, car le statute 13 //". 4.
cap. 7. parle, quils eux arrestant, & si les justices ou ascuns de leuir
company tue ascun des rioters, qe ne voil render nest offence in lui,
come fuit auxi prise in ledit case de Drayton Basset ;^\d) and note,
that tho the statute of 1 Eliz. was then in force, yet that was not a
case within that statute, nor depending on it.
And it seems the same law is for the constable of a vill in case a
riot happens within a vill, he may assemble force within liis vill to
arrest the rioters, and if he or those assembled in his assistance
come to arrest the rioters, and they resist, and be kild by the con-
(tf) 1 Geo. cap. 5. a new act was made to the same purport, which is perpetual.
lb) New Edit. cap. 182. />. 21^7. {(l) Sec also Crompt. 23 b.
(c) Cap. 150. p. 481.
HISTORIA PLACITORUM CORONA. 495
stable or any of his assistants, the constable and his assistants are
dispunishable for the same, for he is enabled hereunto by the com-
mon law, as being an officer for the preservation of the peace, and
may command persons to his assistance, and if they refuse, tiiey are
fineable for it.
And farther, the statute of HE. 2. cap. 8. commands
and authorizes the king's ministers to use all their power [ 496 ]
to take and suppress such riots and rioters, and a constable
is the king's minister; and the statute of 13 //. 4. cap. 7. is no
repeal of this statute, so that the killing of a rioter by a sheriff,
justice of peace, or constable, when he will resist and not submit to
the arrest, seems to be no felony at common law, nor makes any
forfeiture, for they do but their office, and are punishable if they
neglect it.
S. If the prisoners in goal assault the goaler, and he in his de-
fense kills any of them, this is no felony, nor makes any forfeiture.
22 ^ssiz. 5. per Thorp, adjudge per tout le counceL*
* See ante p. 424, note I.
CHAPTER XLII.
CONCERNING THE TAKING AWAY OP THE LIFE OF MAN, BY THE
COURSE OF LAW, OR IN EXECUTION OF JUSTICE.
This kind of occision of a man according to the laws of the king-
dom and in execution thereof ought not to be numbered in the rank
of crimes, for it is the execution of justice, without which there were
no living, and murders, burglaries, and all capital crimes would be
as frequent and common, as petit trespasses and batteries.
The taking away of the life, theref^ore, of a malefactor according
to law by sentence of the judge, and by the sheriff or other minister
of justice pursuant to such sentence, is not only an act of necessity,
but of duty, not only excusable, but commendable, where the law
requires it.[l]
But because there are some cautions and considerations
in this matter, I have added it to the close of this title of [ 497 ]
homicide.
Regularly it is not lawful for any man to take away the life of
another, tho a great malefactor, without evident necessity, (whereof
before,) or without due process of law, for the deliberate, uncom-
pelled extrajudicial killing of a person attaint of treason, felojiy, or
murder, or in a prsemunire, tho upon the score of their being such,
is niurder.(tf)
(a) Coron. 203.
[I] Foster, 267; 4 Bl Com. 178.
497 HISTORIA PLACITORUM CORONA.
Therefore it is necessary, 1. That he, that gives sentence of death
against a malefactor, be authorized by lawful commission or charter,
or by prescription to have cognizance of the cause. 2. That he
that executes such sentence be authorized to make such execution,
otherwise it will be murder or manslaughter, or at least a great
misprision in the judge that sentenceth, or in the minister that exe-
cuteth.[2]
I. As touching the authority of the judge, I shall not at large
discourse the jurisdiction of the judges or courts in this place; it will
be more proper hereafter; but shall mention only some things, that
may be seasonable for this place.
If he that gives judgment of death against a person, hath no com-
mission at all, if sentence of death be commanded to be executed by
such person, and it is executed accordingly, it is murder in him that
commands it to be executed, for it was coram non judice.
If a commission of the peace issue, this extends not to treason,
neither can justices of peace hear and determine all treasons by
force of this commission, for it extends only to felonies, (tho some
treasons are by act of parliament limited to their cognizance, as
hath been before observed) if they take an indictment of treason,
- and try and give judgment upon the party, this is most certainly
erroneous, and possibly avoidable by plea, but I do not think it
makes the justices guilty of murder in commanding the execution
of such sentence, for they were not without some colour of proceed-
ing therein, because all treason is felony, tho it be more, and the
king may, if he pleases, proceed against a traitor for felony;
[ 498 ] and antiently a pardon of all felonies discharged some trea-,
sons. 1 E. 3. Charter de Pardon 13. 22 ^ssiz. 49 Co. P. C.
p. 15. but it is a great misprision in such justices.
The justices of the common pleas cannot hold plea upon an
indictment or appeal in capital causes, it will be at least erro-
neous, if not voidable by plea; but if they hold plea in appeal of
death by writ, and give judgment therein for the party to be
hanged, which is executed accordingly, I think it is an error, and a
great misprision in them, but not felony, because they had colour to
hold plea thereof by an original writ out of the chancery under the
great seal.
Upon the same reason I take it, that if there be a writ sent to the
sheriff", eschetor, or »/2. B. and C. to hear and determine felonies,
whereas it ought to be a commission, 42 ^^ssiz. 12, 13. and they
proceed thereupon to a judgment and execution in case of felony, it
is a great misprision, but I think it makes not the judge nor execu-
tioner guilty of murder; the same law I take to be in Lade's case,
quod vide Co. P. C. p. 48. 5 Co. Rep. 106. a Constable's case.
The commissioners upon the statute of 28 H. S. had given judg-
ment of death against him that struck at sea, and the party died at
[2] 3 ImU 52. 211; Foster, 270; f! N. B. 244 A; 19 Rym. Fad. 284; 1 East,
P. C. 335.
HISTORIA PLACITORUM CORONA. 498
land ; and the same law I take to be, where he that hath the fran-
chise of Infangthief, gives judgment of death against a felon not
within his jurisdiction, 2 R. 3. 10. b. the ease of the abbot of Croiv-
land; it might be a cause of a seizure of the Uberty, but makes not
the steward guilty of murder.
And what I have said of a proceeding in capitals without the
strict extent of their commission may be said of the like proceed-
ing, where, in strictness of law, the commission happens to be
determined.
A commission of gaol-delivery issues to ,ji. B. <§"c. they sit one day,
and forget to adjourn their commission, or the clerk forgets to enter
the adjournment, a felony is committed the next day, and they pro-
ceed in sessions, and take an indictment, and give judgment of death
against the malefactor, this judgment is erroneous, and the clerk of
assizes shall never be permitted to amend the record, and enter an
adjournment, this judgment is erroneous, and shall be reversed; but
it makes not the judges guilty of murder or homicide, tho in
strictness of taw their commission was determined by the £ 499 ]]
first day's session without adjournment.
King James issued out several commissions of gaol-delivery, SfC.
the justices went their circuit, the king died, yet they proceeded, and
before notice of the king's death condemned and executed many pri-
soners; it is held these proceedings were good, and the commissions
stood till notice of the king's death, M. 3. Car. C. B. Sir Randolph
Creio^s case,(6) tho, in strictness of law, their commissions were de-
termined by the king's death; but suppose they were both in law and
fact determined, the judgments that happened upon sessions begun
after the king's death would be erroneous, but the judges had not
been criminal in commanding the execution of their sentence before
notice; for if ignorantia juris doth in some cases excuse a judge,
much more doth ignorantia facti.
If a commission of gaol-delivery issue to A. B. and C. in the coun-
ty of D. and afterward a second commission of gaol-delivery in the
same county issue to E. F. and G. and there is notice given to the
former commissioners, but no session by virtue of the second com-
mission, whereupon the former proceed notwithstanding that notice
in pays, (as conceiving it insufficient, unless either a writ of Super-
sedeas had been sent them, or at least a session by the second com-
mission) and they proceed in cases capital, this makes them not guilty
of felony, 34 Jlssiz. 8. because tho the second commission be effectual
for them to proceed without any actual revocation by Supersedeas,
or otherwise of the former, yet the former is not actually determined,
till a Supersedeas or a session by virtue of the second commission,
upon an extrajudicial notice, or a notice in pays, the first commission-
ers may, if they please, forbear any further session, but they are not
bound to take notice of rumours and reports ; the like in case of a
sheriff", M. 26. Eliz. Moore 333. 5 E. 4.
If in the time of peace a commission issue to exercise martial law,
(6) Cto. Car. 93
499 HISTORIA PLACITORUM CORONA.
and such commissioners condemn any of the king's subjects (not
being hsted under the military power,) this is without all
r 500 ] question a great misprision, and an erroneous proceeding,
and accordingly adjudged in parliament in the case of the
earl o{ Lancaster, Pari. 1 E. 3. part 1. de quo supra, p. 344.
And in that case the exercise of martial law in point of. death in
time of peace is declared murder. Co. P. C. p. 52.
But suppose they be listed under a general or lieutenant of the
king's appointment under the great seal, and modelled into the form
and discipline of an army, either in garrison or without, yet as long
as it is tempus pads in this kingdom, they cannot be proceeded
against as to loss of life by martial law; and the same for mariners
that are within the body of the kingdom, but their misdemeanors, at
least if capital, are to be punished according to the settled laws of the
kingdom, 3 Car. cap. 1. the petition of right; yea, and it seems as to
mariners and soldiers at sea, when in actual service in the king's
ships, they ought not to be put to death by martial law, unless it be
actually in time of hostility ; and this appears by the statute of 28 H. 8.
that settled a commission to proceed criminally in cases of treason
and felony, and by the late act of 13 Car. 2. cap. 9. settling special
orders under pain of death by act of parliament ;(c) but indeed, for
crimes committed upon the high sea, the admiral had at common law
a jurisdiction even unto death, secundum leges maritimas ; but this
was a different thing from martial law.
And this appears also by the statute of 13 7?. 2. cap. 2. the constable
and marshal, who are the J udices ordinarii in cases belonging to the
martial law, are yet thereby declared to have no jurisdiction within
the realm, but of things that touch war, which cannot be discussed
nor determined by the common law.
It must therefore be a time of war, that must give exercise to their
jurisdictions, at least in cases of life.
And thus far concerning the judicial sentence of death, where and
when it is homicide criminally, and when not.
II. Now a few words concerning the officer executing such sen-
tence, and where and when he is culpable in so doing.
Wheresoever the judge hath jurisdiction of the cause, the
[ 501 3 officer executing his sentence is not culpable, tho the judge
err in his judgment, but if the judge have no manner of juris-
diction in the cause, the officer is not altogether excusable, if he exe-
cute the sentence.
In the great courts of justice, as of oyer and terminer, gaol-
delivery, and of the peace, regularly, the sheriff of the county, or
those that he substitutes, as under-sheriff, gaoler, or executioner, are
the ordinary ministers in execution of malefactors, and they are to
pursue the sentence of the court,[3] and therefore, 1. If he vary from
(c) And this appears also from the annual statutes for punishing mutiny or desertion.
3 Geo. 1. cap, 2. S^ mullos alios.
[3] Sec this rule explained, Foster, 267, sec. 9.
HISTORIA PLACITORUM CORONJ^.. 501
the judgment, as where the judgment is to be hanged, if he behead
the party, it is held murder.(c/) 2. It must be done by the proper
officer, viz. the sheriff or his substitute, if another doth it of his own
head, it is held murder: vide Co. P. C. p. 52. [4]
The use heretofore was, and regularly should be so still, that if
sentence of death be given by the lord high steward, a warrant
under the seal of the lord steward, and in his name should issue for
the execution, and the like by three at least of the commissioners of
01/er and terminer, where sentence of death is given by them. Co.
P. C.p. 31.
But use hath obtaind otherwise before commissioners of goal-
delivety, for there is no warrant under the seal of the justices for
execution, but only a brief abstract or calendar left with the sheriff
or gaoler; and I remember Mr. Justice Rolle would never subscribe
a calendar, but after judgment given would command the sheriff in
court to do execution, and for not doing it, he fined Varney the
sheriff of Warwickshire 2000/.
If a prisoner be removed into the king's bench by Habeas
Corpus, or taken upon an indictment of felony in Middle- [ 502 ]
sex, and be committed to the marshal, and upon his arraign-
ment be found guilty, and hath judgment to die, the court may send
the person to JVewgafe, and command the sheriff of Middlesex to do
execution, but if he be remitted to the marshal, (as regularly he
ought to be,) then the marshal is the proper officer of the court to
do execution, and he may execute the offender in Middlesex, where-
ever the offense was committed, (e) and the court may ore tenus, or
by their order, command the sheritfof Middlesex to be assisting, but
the entry upon the roll ought to be, Et praeceptum est marescallo,
Sj'C. quod facial executionera periculo incumbent e ; and thus it
was done H. 24. Car. 2. upon a conviction of murder committed
in Kent upon a trial at the king's bench bar, upon search and pro-
ducing of many antient and late precedents, for regularly, he that is the
(<f) Of this opinion was also lord Coke, Co. P. C.p. 52. 211. notwithstanding it had
been practised otherwise in some instances, as in tlie case of queen Ann Boleyn, and
queen Katherine Howard, in the time of Henry VIII. the duke of Somerset in the time
of Edward VI. and the lord Audley in tiie time of Charles I. upon the authority of
which cases the lady Alice Lisle was beheaded for treason. 1 Jac, II. See State TV.
Vol. IV. p. 129.
So in the cases o( Ashlon, 19 Jan. 1690. at the Old Baily, (State Tr. Vol. IV. ^ 483.)
and Matthews the printer, Octob. 30, 1719, at the Old Baily, who were both sentenced for
higii treason, and were handed till they were dead, without any quartering or beheading,
altho this was not only ditferent from, but contrary to the sentence in high treason,
which orders, that they shall be hanged, but not till they are dead : but as lord Coke
says in the place above-mentioned, Judicandum est legihus non exemphs; and indeed,
since the judgment is the warrant for the execution, it should seem that every execu-
tion, which is not pursuant to the judgment, is unwarrantable.
(e) See Althoes case supra in notis p. 464. who were executed in Surrey for a fact
committed in Pembrokeshire in Wales: see also the case of Fitz-Palrick and Brodway,
State Tr. Vol. I. p. 374, who were executed in Middlesex for a fact in Wiltshire, and
the case of Layer, State Tr. Vol. Wl.p. 332. who was executed in Middlesex for a fact
in Essex,
[4] 4 Bl. Com. 17S.
502 HISTORIA PLACITORUM CORONA.
immediate minister of the court, ought to make execution, and such
is tlie marshal to the court of king's bench, especially where the per-
sons are committed to his custody, and this is done without any writ,
but only by the command of the court ore tenus.
And thus far concerning the death or killing of a man, where it is
not, and where it is punishable, and the several degrees thereof.[5]
Foster, 267.
[503] CHAPTER XLIII.
OF LARCINY, AND ITS KINDS.
Altho the offenses of burglary and arson are of an higher nature
than larciny, yet because there be some things that fall under the
consideration of larciny, that are necessary to be known previousjy
to the consideration of burglary, ^-c. I shall begin with this.
Larciny or theft, under the various laws of several countries, hath
been under various degrees of punishment; in some countries the
punishment was triple or fourfold restitution, as among the Jews,{a)
in others deportation or banishment, or condemning to several em-
ployments, as among the Romans-lb)
And in England, in antient time, the punishment of theft was not
fixed or settled, and altho Hoveden and Simon Dunelmensis tell us,
thdii Jirmissimd lege statuit Hqwucws primus, quod fares latrocinio
deprehensi suspendaniur ; yet in the time of Henry II. they were
otherwise punished; quod vide apud Selden. Jur. Jing. p. 83. But
the same law, touching the punishment of grand larciny with death,
seems to have been fixed and settled ever since the time of Henry II.
and Bracton, that wrote in the time of Henry III. takes it as a thing
settled and commonly practised in his time : vide ipsum. Lib. III.
cap. 32. jo. 151. b.{*)
Now touching the kinds of larcinies they are two, viz. either sim-
ple larciny, or larciny accompanied with violence or putting in fear,
which is called robbery.
Simple larciny or theft is of two kinds, viz.
Grtnd larciny, when it is above the value of twelve-pence.
Petit larciny, when only of the value of twelve-pence, or under.
The nature of the offense is the same in both, but the degrees of
their punishment differ, as shall be said.
(a) Vide supra, p. 9. {h) Vide supra, p. 11, (*) Vide supra, p. 12. Sf notes ibidem.
[5] In McLeod's case, the Supreme Court of the State of New York held that a subject
of Great Britain, who, under directions fronm the local authorities of Canada, cotniiiits
homicide, within the State of Netc York, in time of peace, may be prosecuted in the
State courts as a murderer; even though his sovereign subsequently approve his con-
duct, by avowing the direction, under which he did it as a lawful act of government.
The People v. McLeod, 1 Hill, 377.
J
HISTORIA PLACITORUM CORONA. 504
And therefore what is said concerning grand larciny here
is applicable to petit larciny, except as to the point of pun- [504 3
ishment, for the punishment of grand larciny is death and
loss of goods, the punishment of petit larciny is loss of goods and
whipping, but not death.
Simple larciny is defined by Bracton{c) and Briiion(cl) to be
fraudulenta contractaiio rei aliense cum nnimo furandi invito
domino, ciijus res ilia fuerit : by my lord Coke to be the felonious
and fraudulent taking and carrying away by any man or woman of
the mere personal goods of another, neither from the person, nor by
night, in the house of the owner. Co. P. C. p. 107.[1]
1 shall pursue his method in that chapter with such additions, as
shall be requisite.
The indictment runs vi Sf armis felonice furatusfuit, cepit 4* a^-
portavit in case of dead chattels, cepit 4' ahduxit in case of a horse,
cepit and effugavit in case of sheep, cows, 4'C. wherein the words
felonice furatiis fuit, cepit, are essential to the crime.
This description gives us these heads of inquiry.
1. What a taking. 2. What a carrying away. 3. What a felo-
nious taking and carrying away. 4. What the personal goods.
5. What the goods of another. 6. What or who may be said a taker.
(c) Lih. III. de corona,cap. 32. /oZ. 150. b.
Id) Cap. 15. p. 22. See also Fleta, Lib. I. cap. 38. p. 54.
[1] "Larceny, theft, or stealing, is the fraudulently taking any thing of marketable,
saleable, assignable or available value, belonging to or being the property of another,
with the intent on the part of the person so taking the same fraudulently and without
right to appropriate the same to or dispose of, conceal or destroy the same for his own
use and benefit, or to the use and benefit of any other person than the owner of, or person in-
terested in the same or entitled to the possession thereof, and to deprive, defraud, or despoil
the owner thereof or person interested therein or entitled to possession thereof, of the same,
or of tlie value thereof, or of his property or interest therein, or of the benefit he might
derive therefrom, against the will of such owner or person interested, and without, at the
time of taking, having an intention then or thereafter bonajide to make compensation or
indemnity therefor, or a restoration thereof, to such owner thereof, or person interested
therein or entitled to possession thereof." Penal Code of Mass. 2. This definition of
larceny is given by the Mass. Commissioners, and is intended to characterize the
crime precisely as at the common law. It is thought to be comprehensive and accurate.
The English commissioners, in their first report oa dim. Law, p. 16, have given six
different definitions of this crime from as many ditferent sources.
1. Blachstone. "Theft is the felonious taking and carrying away the goods of an-
other."
2. Eyre, Oh. Just. '' Larceny is the wrongful taking of goods with intent to despoil
the owner of them lucri causa.^''
3. Grose, J. in delivering the opinion of the twelve judges. "The felonious taking of
the property of another without his consent and against his will, with intent to convert
it to the use of the taker."
4. Pulton. "Larceny is the fraudulent taking away of another man's goods above the
value of twelve pence, without the knowledge of him whose the goods be."
5. Lombard. "Larceny is the fraudulent and' felonious taking of another man's goods
(removal from his body and person) without his will, to the end to steal them."
6. Dalton. " Larceny is the fraudulent and felonious taking away of another man's
personal goods (removed from his body and person) in the absence of the owner, without
his knowledge."
VOL. I. — 44
504 HISTORIA PLACITORUM CORONA.
These regularly are the ingredients into this crime of felony, and
must be severally considered.
I. What shall be said a taking.
If c^. delivers a horse to B. to ride to D. and return, and he rides
away unimu furandi, this is no felony, [2] the like of other goods.(e)
Co. P. C. p. 107. 28 E/iz. Butler's case.
So if a man deliver goods to a carrier to carry to Dover, he carries
them away, it is no felony, [2] but if the carrier have a bale or trunk
with goods delivered to him, and he break the bale or trunk,
[ 505 ~\ and take and carry away the goods (mimo furandi, or if he
carry the whole pack to the place appointed, and then carry
it away animo furandi, this is a felonious taking by the book of 13
E. 4 9. Co. P. C.p. 107.
But that must be intended, when he carries them to the place, and
delivers or lays them down, for then his possession by the first de-
livery is determined, and the taking afterwards is a new taking: vide
21 H. 7. 14.
Before the statute of 21 H. S. cap. 7. if a man had deliverd goods
to his servant to keep or carry for him, and he carrieth them away
animo furandi, this had not been felony, (/) but by that statute it is
made felony, if of the value of forty shillings; but the offender shall
at this day have his clergy;(^) but yet if an apprentice(A) doth this,
or if a man deliver a bond to his servant to receive money, or deliver
(e) Upon this principle it was doubted, whether a person hiring lodgings was guilty of
felony in stealing tiie goods he had hired willi his lodgings. See Kcl. 24 8^ 81. but this
doubt is removed by 3 cSf 4 W. S^ M. cap. 9. whereby it is declared to be felony.
(/) This was a disputed point (!^ee 3 H. 7. 12 b.) for which reason the statute of 21 H,
8. cap. 7. was made to settle the doubt that was at common law ; for in the beforemen-
tioned case, 21 H. 7, 14. it is said to be felony, if he was intrusted with the keeping only
within the house, stable, <SfC. because then the things are adjudged in the master's pos-
session; but if he be intiusted to carry the things out of the house, ^c. elsewhere, then
it is not felony.
ig) By 27 H. 8. cap. 17. Clergy was taken away, restored again by 1 J5^. 6 cap. 12. and
again taken away by 12 Ann. cap. 7. from offenses committed in any dwelling-house or
out-house, excepting in the case of apprentices under the age of fifteen years. See note,
ch.U.
(Ji) The statute also excepts all servants within the age of eighteen years, this act,
which was repeal'd by the general words of 1 Mar. cap. 1. is revived by S Eliz. cap, 10.
[2] Bailees without hire cannot, at the common law, commit larceny. 2 £asi, P.C.
G81. 684. Rose, on Crim. Ev. 478. Leigh's case, 2 East, P. C. 694. Gornion's case, 2
Overton's Rep. 68.
Carriers, for hire, cannot, by the common law, commit larceny. Fletcher's case, 4 Carr.
Sf I'ay. 545. Prathifs case, 5 Id. 533. Maddux's case, Russ. iSf Rif. 92. This rule is
now, however, much broken in upon, and altered by judicial decision and legislation.
See Com. v. Brown, 4 Mass. R. 580. Mass. Rev. Slat. c. 126. s. 30.
In the case of a theft by a carrier, who, having a lien, and consequently a right of
possession, slept out of the character in which he exercises sucli possessory rigiit and
removes the thing or a part of it, and disposes of it, in violation of his trust, with intent
to steal il, this is held, in tlio jurisprudence both of England and this country to be a
stealing of the thing, or such jiarl, I'roni the proprietor, notwithstanding the carrier, both ,
on account of his hen and his charge of the thing and responsibility for its value, is both
a proprietary and possessory owner of it. Report of the Penal Code of Mass. p. 11. See
also Com. v. Williams, 1 Virg. Cas. 14. Com. v. JIai/s, Idem. 122. Thompson v. Com.
2 Virg. Cas. 135. Angel v. Com. Id. 228. The Slate v. Somerville, 21 Maine R. 14. Com.
V. Morse, 14 Muss. R 217. ace. Norton v. The People, 8 Cow. R. 137. contra Poole v.
Simmonds, 1 N. II. Rep. 289.
i
HISTORIA PLACITORUM CORONA. 505
him goods to sell, and he accordingly sells and receives the money,
arid carries it away animofurundi,\\\\s is neither felony at common
law, nor by this statute. Co. P. C.p. 105. 26 H. S. Dy. 5. a. b.
*ji. a servant of B. receives the rents of B. and animo furundi car-
ries it away, this is not felony at common law, because A. had it by
delivery; nor by the statute, because he had it not by the delivery of
his master or mistress. Dalt. cup. 102. (/)
^i. delivers the key of his chamber to B. who unlocks the cham-
ber, and takes the goods of ^^. animo furandi,\h\:& is felony, because
the goods were not delivered to him, but taken by him. 1.3 E. 4. 9. h.
He, that hath the care of another's goods hath not the pos-
session of them, and therefore may, by his felonious em- [ 506 ]]
bezzling of them, be guilty of felony ; as the butler that hath
the charge of the master's plate; the shepiierd that hath the charge
of his master's sheep. 3 H. 7. 12. h. 21 H. 7. 15. a. Co. P. C.p. 108.
The like law for him that takes a piece of plate set before him to
drink in a tavern, Sf-c. for he hath only a liberty to use, not a posses-
sion by delivery. 13 E. A. 9.
And so it is of an apprentice, that feloniously embezzels his inas-
ter's goods or money out of his shop, it is felony. Dalt. cap. 102.
\{Jl. comes to B. and hj a false message or token receives money
of him, and carries it away, it is no felony, but a cheat punishable
by indictment at common law, or upon the statute of 33 H. 8. cap. 1.
by salting in the pillory.
\i ,ji. finds the purse of B. in the highway, and takes it and carries/
it away, and hath all the circumstances that may prove it to be done
animo furandi, as denying it or secreting it, yet it is not felony,[3]
the like, in case of taking of a wreck or treasure-trove, 22 Jlssiz. 99.J
or a waif or stra3^
But yet this taking of treasure-trove, waif, or stray must be where
the party that takes them, really believes them to be such, and colours
not a felonious taking under such a pretense, for then every felon
would cover his felony with that pretense.
Where a man's goods are in such a place, where ordinarily they
are or may be lawfully placed, and a person takes them animo fii-
randi, it is felony, and the pretense of finding must not excuse.
If a man's horse be going in his ground, or upon his common, and
he takes it animo furandi, it is no finding, but a felony. ' ~
So it is if the horse stray into a neighbour's ground or common, it
is felony in him that so takes him; but if the owner of the ground
■takes it damage feasant, or the lord seises it as a stray, tho perchance
he hath no title so to do, this is not felleo animo, and therefore can-
not be felony.
If the sheep of ^^. stray from the flock of ^^. into the flock
of B. and B. drives them along with his flock, or by pure [507]
mistake shears him, this is not a felony, but if he know it to
(i) New Edit. cap. 155. p. 496.
[3] 2 Ru8s. on Crimes, 12. 5 Am. Ed. 1845. note (gg.)
507 HISTORIA PLACITORUM CORONA.
be another's, and marks it with his marks, this is an evidence of a
felony. [4]
■~ A man hides a purse of money in his corn-mow, his servant find-
ing it took part of it, if by circumstances it can appear he knew his
master laid it there, it is felony; but then the circumstances must be
pregnant, otherwise it may be reasonably interpreted to be a bare
^finding, because an unusual place for such a depositiim.
Ji. hath a design to steal the horse of B. enters a plaint of replevin
in the sheriff's court for the horse, and gets himdeliver'dto him, and
then rides him away; this is taking and stealing, because done m
frcmdem legis,{k) P. 15 Eliz. B. R. Co. P. C. p. 108.
Jl. hath a mind to get the goods of B. into his possession, privat-ely
delivers an ejectment, and obtains judgment against a casual ejector,
and thereby gets possession, and takes the goods, if it were anmio
furo.ndi, it is larciny.[5].
— ■ If ^. steals the horse of B. and afterwards delivers it to C who
was no party lo the first stealing, and C. rides away with it animo
fiirandi, yet C. is no felon to B. because tho the horse was stolen
from B. yet it was stole by A. and not by C. for C. non cepit, neither
is he a felon to t/1. for he had it by his delivery.
But if Ji. steal the horse of J5. and after C. steal the same horse
from ./?. in this case C. is a felon both as to A. and as to B. for by
the theft by J2. B. lost not the property, nor, in law, the possession
of his horse or other goods, and therefore in that case C. may be ap-
peal'd of felony by B. or indicted of felony, quod cepit <§' asportuvit
the horse of B. 4 H. 7. 5. b. 13 E. 4. 3. b.
And that is the reason, that if Jl. steals the goods of B. in the
county of C and carry them into the county of D. A. may be in-
dicted for larciny in the county of Z>. for the continuance of the as-
portation is a new caption; but if he be indicted of robbery,
[ 508 ] it must be in the county of C. where the force and putting
. in fear was, de quo postea. 4 H. 7. 5. b.
II. The words of the indictment are not only cepit, but cepit Sf as-
•portavit, or abduxit or effugavit.*
\i A. comes into the close of ^. and take his horse with an intent
to steal him, and before he gets out of the close is apprehended, this '
is a felonious taking and carrying away, and is larceny. Co. P. C.
]). lOS, 109. Justice Dalison^s reports.
So if a guest lodge in an inn, and take the sheets of the bed with
an intent to steal them, and carries them out of his chamber into the
hall, arid going into the stable to fetch his horse is apprehended, this
Qc) See also Kel. 42.
[4] Reg. V. Reed, 1 Carr. <^ M. 306.
[5] To coiJstitutc the crime of larceny, tlio taking must be invito domino, against the
will of the owner, and tlic i)ropcrty in liis actual or constructive possession, tlite v. The
iilate, 9 Merger, iU8 ; and there must be a criminal intention on the part of the taker,
or an indictment for larceny cannot be sustained. The State v. Hawkins, 8 Porter, R. 461.
Wfiarton''s Crim. Law, 3!J4-398, where the American authorities are fully collected.
2 Russell on Crimes, VJ. ruh. Am. Ed. 1845, and see note {l)post.p. 508.
» Vide note [1] post. p. 508.
HISTORIA PLACITORUM CORON^E. 508
is felony, and a felonious taking and carrying away, 27 ^^ssiz. 39.
Co. P. C. p. lOS. and accordingly it was ruled 16 Car. 2. B. R. upon
a special verdict found in Cambridf^eshire,{l) A. comes into the
dwelling-house of B. nobody being there, and breaks open a chest
and takes out goods to the value of jive shillings, and lays them on
the floor of the same room, and is apprehended before he can remove
them. [6] he was indicted upon the statute, and ousted of his clergy
by the advice of all the judges, except one; for the taking out of the
chest was felony by the common law, and the statute of 39 Eliz. cap.
15. alters not the felony, but ousts only the clergy. Ex lihro Bridge-
man.
A. hath his keys tied to the strings of his purse, B. a cut-purse
takes his purse with money in it out of his pocket, but the keys,
Avhich were hanged to his purse-strings, hanged in his pocket,
Jl. takes B. with his purse in his hand, but the string hanged to his
pocket by the keys, it was ruled this was no felony, for the keys and
purse strings hanged in the pocket of Ji. whereby A. had still in
law the possession of his purse, so that licet cepit non asportavlt^
40 Eliz, Wilkinson^s case cited M. S. Jac. C. B.{m) 2 East,
P. C. 556.
III. As it is cepit and asportavil, so it must hefehnicS or animo
furandi, otherwise it is not felony, [7] for it is the mind that makes
(I) Simpson's case, Kel. 31. (m) See Crompt. Justice 35 a.
[fi] Simpson's case, Kel. 31. State v.Wilson, Coxe's N. J. Rep. 439. Amier's case, G C.
Sf Pay. 344. 2 East's P. C. 555. Rose. Cr. Ev. 470. Walsh's case, Moody, 14.
' [7] What amounts to a felonious taking. — If a person picks up a thing, when he knows
that lie can immediately find the owner, and instead of returning it to the owner, con-
verts it to his own use, this is a larceny. Rex v. Pope, 6 Car. Sf P. 34G.
If a party finding property knows the owner, or if there be any mark upon it by which 1
the owner can be ascertained, and instead of returning it, converts il to his own use, |
such conversion will constitute a felonious taking. Anon. 2 Russ. C. ^ M. 102. Rex v. '
James, id.
A. went to a sliop and asked a boy there to give him change for a half-crown; the
boy gave him two shillings, and sixpenny worth of copper. The prisoner held out a
' half-crown, which the boy touched, but never got hold of it, and the prisoner ran away
with the two shillings and the copper :— //eZ(/ a larceny of the two shillings and the cop-
per. Rex. V. Williams, 6 Car. Sf P. 390.
A. the owner of a boat was employed by B. the captain of a ship, to carry a number of
wooden staves ashore in his boat; B.'s men were put into the boat, but were under the
control of A. who did not deliver all the staves, but took one of them away to the house
of his mother : — Held, that this was a bailment of the staves to A. and not a charge only ;
and that a mere non-delivery of tlie staves would not have been a larceny in A. but that
if A. separated one of the staves from the rest, and carried it to a place different from
that of its destination with intent to appropriate it to his own use, that was equivalent
to a breaking of bulk, and therefore would be sufficient to constitute a larceny. Rex v.
Howell, 7 Cur. Sf P. 325.
If A. asks li. who is not his servant, to put a letter in tlie post, telling him it contains
money, and B. breaks the seal and abstracts the money before he puts the letter into the
post, he is guilty of larceny. Rex v. Jones, 7 Car. Sf P. 151. But if a person, from idle
curiosity, either personal or political, opens a letter addressed to another |)erson, and
4eeps the letter, tills is no larceny, even though a part of his object may be to prevent the
letter from reaching its destination. i?eo-. v. Godfrey, 8 Car. Sf P. 563.
To constit'itc a larceny, by a party to whom goods have been delivered on hire, there
508 HISTORIA PLACITORUM CORONA.
the taking of another's goods to be a felony, or a bare trespass only
but because the intention and mind are secret, the intention must be
judged by the circumstances of the fact, and tho these cir-
[] 509 ] cnmstances are various, and may sometimes deceive, yet
must not only be an original intention to convert them to his own use, but a subsequent
actual conversion ; and a mere agreement by the liirer to accept a sum ofFc-rcd for the
goods is not sucli conversion if the party who makes the oft'er does not intend to pur-
chase unless liis suspicions as to the honesty and right of the vendor to sell are removed.
Reg. V. Brooks, 8 Car. &f P. 295.
A person by false pretences induced a tradesman to send by his servant to a particular
house, goods of the value of '2s. 10^/. with change for a crown piece. On tlie way he
met the servant, and induced ium to part with the goods and change a crown piece, but
whicii afterwards was found to be bad. Both the tradesman and servant swore that the
latter had no authority to part with the goods or change without receiving the crowtt
piece in payment; though the former admitted that he intended to sell the goods, and
never expected them back again: — Held that the offence amounted to larceny. Rex v.
Small, 8 Car. S^ P. 46.
On an indictment for larceny it appeared that a landlord went to his tenant (who had
removed all his goods) to demand rent amounting to £12 10s. taking with him a receipt
ready written and signed ; the tenant gave him £2, and asked to look at the receipt. It
was given to him, and he refused to return it, or to pay the remainder of the rent. It
was proved by the landlord that at the time he gave the prisoner the receipt, he thought
the prisoner was going to pay him the rent, and that he should not have parted with the
receipt unless he had been paid all the rent, but that when he put the receipt into the
prisoner's hands he never expected to have the receipt again; and that he didnot want
the receipt again, but wanted his rent to be paid : Held a larceny, and that the fact of
the tenant giving the £2 made no difference. Reg. v. Rodnay, 9 Car. ^ P. 784.
An ostler assisted in removing from a wagon which stopped at the inn where he was
employed, a quantity of hay which had been taken by the waggoner from his master's
stables and put into tlie wagon, such hay not being allowed for the horses on the jour-
ney:— Held, that the ostler was properly indicted for receiving, because as the hay was
not always allowed by tlie master for the horses, tlie moment it was removed by the
Vv'aggoner from the stable to the wagonaniiiio furandi, the larceny was complete. Reg.
V. Gruncell, 9 Car. Sf P. 365.
A person hired to drive cattle to a particular place, who sells the same, and absconds
v.'ith the money, is guilty of stealing, though the intention to sell be not conceived till
after taking possession of the cattle. Reg. v. Jackson, 2 M. C. C. R. 32.
A prisoner was employed as master of a coal vessel. The custom of the trade was
that he should receive two-thirds of the freight — he took the whole : — Held, that he was
not a. joint proprietor with the master, and that he was properly convicted of stealing the
master's third. Anon. '2 Lewin, C. C. 258. S. P. Holmes^ case, id. 256.
If a person not being the servant of the party who intrusts him, receive a parcel contain-
ing notes to take to a coach-office, and abstract the notes on his way there, and apply
them to his use, he is guilty of larceny. Reg. v. Jenkins, 9 Car. iSf P. 28.
To constitute ftlony, breach of trust is not sufficient; there must be a felonious taking,
but that is satisfied by an act not warranted by the purpose for which the property was
delivered. Cartwright v. Green, 8 Ves.jun. 402.
To obtain property by fraud, and under a preconcerted plan to rob is felony, but the
animus furandi must he found by the jury. Rex v. Horner, 1 Leach, C. C. 270.
A banker's clerk enters a fictitious sum in the Icgcr to the credit of a customer, and
tells him he has paid the sum to his account, and on the faith of it obtains from the cus-
tomer his chock on the bankers, which the prisoner pays to himself by bank notes front
the fill, and enters in the waste-book a true account of the check-drawer and notes as
p:iid, "to a man." Tjiis was held a felonious taking of the notes ftom thetill. Rex v.
Hammon,^ Taunt.'SOi. 2 Leach, C.C. im'S:
The assent of a prosecutor to give facility to the commission of a larceny for the puri
pose of detecting the offenders, does not do away the felony, although the property was
not taken against his will. Rex v. Egginton, 2 Leach, C. C. 913. 2 East, P. C. 494/
C66. 2 li. c^ P. 508.
The owner of goods, knowing of an intention in the prisoners to steal them, they hav-
HISTORIA PLACITORUM CORONA. SOQ**
regularly and ordinarily these circumstances following direct in this
case.
If ./f. thinking he hath a title to the horse of B. seiseth it as his
own, or supposing that B. holds of him distrains the horse of B.
ing plotted so to do with liis servant, desired the servant to carry on his business with a
view to the detection of the thieves; in consequence of which the servant, with the
con.sent of his master, agreed with the prisoners to open the outer door to them, an(> let
them intoihe liouse, when tiiey brolie open inner apartments, and took the goods: Held^
by a majority of the judges, to be larceny; one doubting, because of the owner's assent
and partial encouragement of the felony by means of his servant. lb.
If a man steals goods in one count}', and carry them into another, it will be larceny in
the latter, though the goods are not carried into the latter county until long after the
original theft. Rex v. Parkin, 1 R. 6; M. C. C. R. 45; 2 Russ. C. Sf M. 174. See infra.
An indictment for robbing a mail-bag of letters must be laid in the county where the
mail was actually taken, in order to bring the case within the statute; and cannot be
laid in the county where the prisoner was in possession of it only; the jury finding that
the letters had been taken from tlie bag into some other county through which the mail
had passed. Rex v. Thomas, 2 East, F. C. 605. 2 Leach, C. C. 634.
To make a taking felonious, it is not necessary that it should be done lucri causa ;
taking with an intent to destroy will be sufficient to constitute the offence of larceny, if
done to serve the prisoner or another person, though not in a pecuniary way. Rex v.
Cabbage, R. Sf R. C. C. 292. 2 Russ. C. 6{ M. 94.
If a man steals his own goods from his own bailee, thongh he has no intent to charge
the bailee, but his intent is to defraud the king; yet if the bailee had an interest in the
possession, and could have withheld it from the owner, the taking is a larceny. Rex v.
Wilkinson, R. Sf R. C. C. 470. 2 Russ. C. Sf M. 156.
If a part-owner of property steal it from the person in whose custody it is, and who is
responsilile for its safety, he is guilty of larceny. Rex v. Bramley, R, Sf R. C. C. 478.
2 Russ.C ^- M.155.
To constitute larceny the felonious intention must exist in the mind at the time tlie
property was obtained; for if it be obtained by fair contract, and afterwards fraudulently
converted, it is no felony. Rex v. Charlewood, 1 Leach, C. C. 409. 2 East, P. C. 689.
If, however, a fraudulent conversion takes place after the privity of contract is deter-
mined, it is felony. Jb.
Obtaining a post-chaise by hiring with a felonious intent to convert it to the use of the
hirec, is felony, although the contract of hiring was not for any definite time. Rex v.
Semple, 1 Leack, C. C. 420. 2 East, P. C. 691.
If a man who is hired to drive cattle, sell them, it is larceny; for he has the custody
only, and not the right to the possession; his possession is the owner's possession, though
he is a general drover; at least if he is paid by the day. Rex v. McNamie, I M. C, C, R,
368.
The prisoner went into a shop in London, and purchased jewelry, and said he would
pay in cash; and the seller agreed to deliver the goods at a coach. office belonging to an
inn where the prisoner stated tiiat he lodged. The seller made out an invoice and took
the goods there, when the prisoner said he had been disappointed in receiving some
money he expected by letter. Just afterwards, a two-penny post letter was put in his
hands, which he opened in the presence of the seller, and said he had to meet a friend at
Tow's Cotfce-house at seven, who could supply the money. The goods were left at the
coach-office, and the seller went home. The prisoner had taken a place in the mail, but
he countermanded that, and absconded with the goods. The seller swore that he con-
sidered the goods sold if he got his cash, but not before. It was left to the jury to say
whether the prisoner had any intention of buying and paying for the goods, or whether
he gave the order merely to get possession of them to convert them to his own use. The
jury found the latter, and the prisoner was convicted; and tlie conviction was held right
by the twelve judges. Rex v. Campbell, Car. C. L. 280; R. S^- M. C. C. R. 179.
Getting goods delivered into a hired cart, on the express condition that the price shall
be paid for tliem before they are taken from the cart, and then getting them from the
cart without paying the price, will be larceny, if the prisoner never had any intention of
paying, but had ub initio the intention to defraud. Rex v. Pratt, R. Sf M. C. C. R. 250.
Taking goods, though prisoner has bargained to buy, is felonious, if by the usage, the
609'' HISTORIA PLACITORUM CORONA.
without cause, this regularly makes it no felony, but a trespass,
because there is a pretense of title ; but yet this may be but a trick
to colour a felony, and the ordinary discovery of a felonious intent
price ought to be paid before they are taken, and the owner did not consent to their
being taken, and tlie prisoner, when he bargained for them, did not intend to pay for
theru, but meant to get them into his possession and dispose of them for his own benefit
without paying for them. Rex v. Gilbert, R. Sf M. C. C. R. 185.
If a person, having ordered a tradesman to bring goods to his house, look out' a certain
quantity, and ask the price of them separate from the rest, and then by sending tlie
tradesman home on pretence of wanting other articles, take the opportunity of running
away with the goods so looked out, with intent to steal therii, it is larceny, for as the
sale was not completed, the possession of the property still remained in the tradesman.
Bex V. Skarpless, 1 Leach, C. C. 92 ; 2 East, P. C. 675.
Where property, which the prosecutor had bouglit, was weighed out in the presence
of his clerk, and delivered to his carman's servant to cart, who let other persons take
away the cart and dispose of the property for his benefit jointly with that of the others.
The carman's servant, as well as the others, are guilty of larceny at common law.
Eexv. Harding, R. Sf R. C. C. 125; 1 Russ. C. S( M. 200.
Where the owner sends goods by his servant to be delivered to -4., but B. fraudulently
procures the delivery to himself by pretending to be A,, he is guilty of felony. Rex v.
Wilkins, 2 East, P. C. 673, 1 Leach, C. C. 520.
Getting a parcel from a carrier's servant, by falsely pretending to be the person to
whom it is directed, if it be taken aiiimo furandi, it is larceny, for the servant has no
authority to part with it but to the right person. Rex v. Longstreth, R. Sf M.
C. C. R. 137.
Fraudulently obtaining a chest of tea from the India House, though by means of a
regular request, note, and permit, was holden to be a larceny. Rex v. Hench, 2 Russ.
C. 4- M. 120; R. Sf R. C. C. 163.
Where the prisoner having offered to accommodate the prosecutor witli gold for
notes, the latter put down a number of bank-notes for the purpose of their being ex-
changed, which the prisoner took up and ran away with : Held, a larceny if the jury
believed that he intended to run away with them at the time, and not to return the gold.
Rex v. Oliver, 2 Russ. C. Sf M. 122.
To obtain a bill of exchange from an indorsee under a pretence of getting it dis-
counted, is felony, if ihe jury find that the indorsee did not intend to leave the bill in
the prisoner's possession witliout the money, and that he undertook to discount with a
preconcerted design to convert its produce to his own use. Rex v. Aickels, 1 Leach,
C. C. 294 ; 2 East, P. C. 675.
Where two planned to rob the prosecutrix of some coats, and one got her to go with
him that he might get some money to buy them of lier, and she left the coats with the
other, who immediately absconded with them: Held, that the receipt by the onp
amounted to a felonious taking of the coats by both. Rex v. County, 2 Russ, p. ^ M. ■
127-175.
, If a bureau be delivered to a carpenfier to repair, and he discover money in a secret
drawer of it, which he unnecessarily as to its repairs breaks open, and converts the
money to his own use, it is a felonious taking of the property, unless it appear that he
did it with intention to restore it to its right owner. Cartwright v. Green, 2 Leach,
C. C. 952. 8 Ves.ju7i.i05.
A person purchased at public auction a bureau, in which he afterwards discovered, in
a secret drawer, a purse containing money, which he appropriated to his own use. At
the time of the sale, no person knew that the bureau contained any thing whatever :
Held, that if the buyer had exi)rcss notice, that the bureau alone and not its contents, if
any, was sold to him; or if he had no reason to believe that any thing more than the
bureau itself was sold, the abstraction of the money was a felonious taking, and he was
guilty of larceny in appropriating it to his own use. Hut that if he had reasonable
ground for believing tiiat he bouglit the bureau with its contents, if any, he had a
colourable property, and it was no larceny. Merry v. Green, 7 Mee. Sf W. 623.
If a parcel be accidently left in a liackncy-coach, and the coachman, instead of
restoring it to the owner, detain it, open it, destroy part of its contents, and borrow
HISTORTA PLACITORUM CORON_^. 509^^
is, if the party doth it secretly, or being charged with the goods
denies it.
If..'?, takes away the goods of B. openly before him or other per-
son (otherwise than by apparent robbery) tliis carries with it an
money on the rest, he is guilty of felony. Rex v. Wynne^ 1 Leach, C. C, 413; 2 East,
P. C. 664-697; S". P. Rex v. Sears, 1 Leach, C. C. 415 n.
A servant clandestinely taking his master's corn, though to give to his master's
horses, is guilty of larceny. Rex v. Morjit, R. Sf R. C. C. 307; 2 Russ. C. Sf M. 94;
iS. P. Reg. V. Usborne, 5 Jur. 200; Reg. v. Careswell, 5 Jur. 251, contra; Reg. v.
Cole, Id. n.
PuUinff wool from the bodies of live sheep and lambs, animo furandi, is larceny.
Rex V. Martin, 1 Leach, C. C. 171; 2 East, P. C. 618.
So it is larceny to take the milk from a cow. lb.
The prisoner having lifted up a bag from the boot of a coach, was detected before he
had got it out; and it did not appear that it was entirely removed from the space it at
first occupied in the boot, but the raising it from the bottom had completely removed
eacli part of it from the space that specific part occupied : Held, that it was a com-
plete asportation. Rex v. Walsh, 1 R. Sf M. C. C. R.U; 2 Russ. C. Sf M. 96.
To remove a package from the head to the tail of a wagon with a felonious intent to
take it away, is a sufficient asportation to constitute a larceny; but merely to alter the
position of a package on the spot where it lies, is not. Rex v. Coslet, 1 Leach, C. C.
236; 2 East, P. C. 556. See Rex v. Cherry, 1 Leach, C. C. 236 n; 2 East, P. C. 556.
If a warehouseman lias several bags of wheat delivered to him for safe custody, and
he take the whole of the wheat out of one bag, it is no less a larceny than if he had
severed a part from the residue of the wheat in the same bag, and had taken only that
part, leaving the remainder of the wheat in the bag. Rex v. Brazier, R. S; R. C. C.
337; 2 Russ. C. Sf M. 134.
What does not amount to a taking. — A., in consequence of seeing an advertisement,
applied to B. to raise money for him. B. said he would procure him i^5000, and pro-
duced from his pockct-booli 10 blank 6s. bill-stamps, across each of which' ^. wrote,
"Accepted, payable at Messrs. P. Sf Co. 189 F. street, London," and signed his name.
B., who was present, took up the stamps, and nothing was said as to what was to be
done with tliem. Afterwards bills of excjiange for X"500 each were drawn on these
stamps, and B. put them into circulation : Held, that these stamps, with the accept-
ances thus written upon them, were neither " bills of exchange," "orders for the pay-
ment of money," or "securities for money;" and held also, that a charge of larceny
against B for stealing the stamps, and for stealing the ^o^er on which the stamps were,
would not be sustained, as this was no larceny. Rex v. Hart, 6 Ca.r Sf F. 106.
Stealing by the wife of a member of a friendly society, money of the society, de-
posited in a box in the husband's custody, kept locked by the stewards, is not larceny.
Rex v. Millis, 1 JVi. C. C. R. 375.
Clandestinely taking away articles to induce the owner (a girl) to fetch them, and
thereby to give the prisoner an opportunity to solicit her to commit fornication with
him, is not felonious. Rex v. Dickenson, R. Sf R. C. C. 420; 2 Russ. C. Sf M. 98.
If a larceny be committed out of the kingdom, though within the king's dominions,
(e. g. in Jersey) bringing the things stolen into this kingdom, will not make it larceny
here. Rex v. Prowes, M. C. C. R. 349. & P; Reg. v. Madge, 9 Car. Sf P. 29 ; see infra.
A. delivered his watch to B. to be repaired, instead of repairing it he sold it, and A.
being informed of this, told B. that he would either have his watch or the money: Held,
no felony. Rex v. Leny, 4 Car. Sf P. 241.
Where a g^rson gave his servant a £5 note to get changed, and he got the note changed
and made off with the change: Held to be no larceny, but an embezzlement. Rex v.
Sullens, Car. C. L. 319 ; R. Sf M. C. C. R. 129.
A. had consigned three trusses of hay to B. and had sent them by the prisoner's cart;
the prisoner took away one of the trusses, which was found in his stable not broken up.
Hdd no larceny, as the prisoner did not break up the truss. Rex v. Pratley, 5 Car. Sf
P. 533.
If a poacher take a gun by force from a gamekeeper under the impression that it may
509^' HISTORIA PLACITORUM CORONA.
evidence only of a trespass, because done openly in the presence of
the owner, or of other persons that are known to the owner.
l( ji. leaves his harrow or his plovV-strings in the field, and B.
having land in the same field useth it, and having done, either return-
be used against him, it is no felony, thoug-Ii he state afterwards that he will sell the gun,
and it be not subsequently heard of. Rex v. HoUowny, 5 Car. S\- P. 524.
It is not an indictiible offence to take away a chattel, unless such a degree of force be
used as will make it an offence against the public, and the indictment must show that
fact. Rrx V. Gardiner, 1 Russ. C. Sf M. 52.
To obtain from a person his note of hand by threatening with aknife held to his throat
to take away his life, was not a felonious stealmg of the note within slat. 2. Geo. 2. c.
25; for it never was of value to or in the peaceable possession of such person. Rex v.
FMpse, 2 Leach, C. C. 673 ; 2 East, P. C. 599.
If a person be induced to play at hiding under the hat, and stake down his money
voluntarily on the event, meaning to receive the stake if he wins, and to pay it if he loses,
the taking up of the stake so deposited by him on the table, is not a felonious taking,
although the taker was made to appear to win the money by fraudulent conspiracy and
collusion. Rex v. Nicholson, 2 Leach, C. C. 610 ; 2 East, P. C. 669.
Where a prisoner took a packet of diamonds to a pawnbroker, with whom he had pre-
viously pledged a broach; and having agreed with the shopman for the amount of the
loan, sealed tlicm up and received the amount, deducting the amount for which the
broach was pledged; but instead of giving the packet of diamonds to the shopman, gave
him a packet of similar appearance, containing only glass : Held, that it was not larceny,
but only a fraud. Rex v. Meilheini, Car. C. L. 281.
If a pawnbroker's servant, who lias a general authority from his master to act in his
business, delivers up a pledge to the pawner on receiving a parcel from the pawner,
which he supposes contains valuables he has just seen in the pawner's possession in a
similar parcel, the receipt of the pledge by the pawner is not a larceny. Rex v. Jack-
son, R. S{ M. C. C. fl. 119.
Where a letter enclosing a check was directed to " James Mucklow, St. Marliri's Lane,
Birminghnm," and no person of that name lived there, but the prisoner lived about ten
yards from St. Martin's Lane and another James Mucklow lived in New Hall street,
and the prisoner, in consequence of a message left by the postman, got the letter from
the post-office and appropriated the check to his own use : Held, that it was not a felo-
nious taking. Rex v. Mucklow, Car. C. L. 280; R. Sf M. C. C. R. 160.
A prisoner cannot be found guilty of stealing goods if it appear that he could not other-
wise get them than by the delivery of the prosecutor's wife, in which case it may be pre-
sumed that he received them from her. Rex v. Harrison, 1 Leach, C. C 47; 2 East, P.
C. 5.59.
Where a jury found that one who assisted in taking another's goods from a fire in his
presence, but without his desire, and who afterwards concealed and denied having them,
yet took them honestly at first, and that the evil intention to convert them came on the
taker afterwards, it was held no larceny. Rex v. Leigh, 2 East, P. C. 694; 1 Leach, C.
C. 411. n.
If tlie owner parts with possession of goods for a special purpose, and the bailee, wherj
that ])urpose is executed, neglects to return them, and afterwards disposes of them, if he
had not a felonious intention when he originally took them, his subsequent withholding'
and disposing of them will not constitute a new felonious taking, or make him guilty of
felony. Rex v. Banks, R. i^ R. C. C. 411 ; 2 Russ C. Sf M. 1.32.
Sernh'e, that if a master of a foreign vessel, captured by a British ship and carried into
port, takes goods from the vessel after she has been condemned as a prize, it is not a
larceny unless there is evidence that he took them for the purpose of converting them to
his private use. Rex v. Van Mayen, R. Sf R. C. (7. 118. 2. Russ. C. ^- M. 10^.
If a tradesman sell a stranger goods, enter them to his debit, jjind makes out a bill of
parcels for them as goods sold, and the goods are delivered to the purchaser by the servant
of the seller, who receives bills for them, it is not felony, altiiough the tradesman sold
tliein for ready money, never intending to give the stranger credit, and it appear that he
had taken the apartments to which he ordered them to be sent for the purpose of obtain-
ing them fraudulently. Rex v. I'arkn-, 2 Leach, C. C. 614. 2 East, P. C. 671.
Wiiere the prisoner obtaiued possession of a hat from the maker, which had been
HISTORIA PLACITORUM CORONiE. 509*
eth them to the place where they were, or acquaints B. with it, this
is no felony, but at most a trespass,
\(\ji. and B. being neighbours, and t/^. having an horse on the
common, and B. having cattle there, that lie cannot readily find,
ordered by a third person, by sending- a boy for it in the nnme of such person. Held,
it did not amount to larceny. Rex v. Adums, 2 Russ. C. Sf M. 113. R. Sf R. C. C. 225.
Wiiere goods in a shop were lied to a string whicJi was fastened by one end to the
bottom of the counter, and a thief took up the goods and carried Ihem away towards the
door, as far as the string would permit: Held, that being no severenee there was no as-
portation, and consequently it was not a felony. Anon. 2 East, P. C. 556. 1 Leach, C. C.
321. n.
Where the prisoner set up a long bale upon end, in a wagon, and cut the wrapper all
the way down, with intent to remove tlie contents, but was apprehended before he had
taken any thing out of it : Held, that there was not a sufficient asportation to constitute
a larceny. Rex v. Cherry, 1 Leach, C. C. 236. n. 2 East., P. C. 556.
If a master and owner of a siiip steal some of the goods delivered to him to carry, it
is not larceny in him, unless he take the goods out of their packages. Rex v. Madox, R.
Sf R. C. C. 92. 2 Russ. C. Sf M. 135.
Nor if larceny, would it have been a capital offence within stat. 24, Geo. 2, C. 45. lb.
If one employed to carry goods for hire, appropriate them to his own us^, but does
not break bulk, this is no larceny, although the person so employed was not a common
carrier, but was only employed in this particular instance. Rex v. Fletcher, 4 Car. Sf
P. 544.
Where a person received a check from Sir T. P. to buy Exchequer-bills, and he car-
ried it to the banker's, got the cash, and embezzled part, on being indicted for stealing:
Held first, that as there was no fraud to induce Sir T. P. to deliver the check, it was not
larceny, although the prisoner intended to misapply the property when he took it, and
misapplied accordingly. Secondly, that as Sir T. P. never had possession of the mo-
ney received at the banker's, but by the hands of the prisoner, tlie indictment could not
be supported. Rex v. Wnlsh, R. Sf R. C. C. 215. 2 Leach, C. C. 1054. 4 Taunt. 258.
But see 7^-8 Geo. 4. c. 29,
A. v/as indicted at common law, for simple larceny, in stealing in Middlesex a quan-
tity of lead. It appeared that the lead was stolen from the roof of the church oi Iver, in
BvcJiinghamshire. The prisoner was indicted at the central crijninal court which has
jurisdiction in Middlesex, (under 4^5 Will. 4. c. 36.) but not in Buckinghamshire,
Held, that he could not be convicted there on the ground that the original taking not being
a larceny, but created by statute a felony, the subsequent possession could not be con-
eidered a larceny. Rex v. Millar, 7 Car. Sf P. 665.
A drover of cattle was employed by a grazier in the country, to drive eight oxen to
London, his instructions were, that if he could sell them on the road he might : and those
he did not sell on the road he was to take to a particular salesman in Stnilhjicld market,
who was to sell them for the grazier. The drover sold two on the road, and instead of
taking the remaining six to the salesman, drove them himself to Smithjield market, and
sold them there, and received the money, which he applied to his own use : Held, that he
could not be convicted either of larceny or embezzlement. Reg. v. Goodbudy, 8 Car. Sf
P. 665.
Where in a case of ring-dropping the prisoners prevailed on the prosecutor to buy the
share of the other party, and the prosecutor was prevailed on to part with his money —
intending to part with it forever, and not with the possession of it only: Held, that this
was not a larceny, Reg. v. Willson, 8 Car, ^ P. 111.
A. was treating B. at a beer-house, and A. wishing to pay, put down a sovereign, de-
siring ttie landlady to give him change ; she could not do so, and B. said he would go
out and get change. A. said, " You wont come back with tlie change." B. replied,
" Never fear." A. allowed B. to take up the sovereign, and B. never returned either with
it or the change : Held no larceny, as A. having permitted the sovereign to be taken away,
for the purpose of being changed, he could never have expected to receive back the spe-
cific coin, and had, therefore, divested himself of the entire possession of it. Reg.w Tho.
7nas, 9 Car. Sf P. HI.
It is not larceny for miners, employed to bring ore to the surface, and paid by tha
509^ HISTORIA PLACITORUM CORONA.
•takes lip the horse of A. and rides about to find his cattle, and hav-
ing done, turns off the horse again in the common, this is no felony,
but at most a trespass.
So if my servant, without my privity, takes my horse, and rides
abroad ten or twelve miles about his own occasions, and returns
again, it is no felony, but if in his journey he sells my horse, as his
own, this is declarative of his first taking to be felonious, and animo
JurandL^S]
But in cases of larciny the variety of circumstances is so great, and
the complications thereof so mingled, that it is impossible to prescribe
all the circumstances evidencing a felonious intent, or the contrary,
but the same must be left to the due and attentive consideration of
the judge and jury, wherein the best rule is, 171 dubiis, rather to
incline to acquittal than conviction.
IV. It must be of goods personal, for otherwise no felony can Be
committed by taking them. [9]
1. Therefore of chatties real no felony can be committed,
r 510 ]] and therefore the taking away of a ward cannot be felony,
nor of a box or chest of charters, that concern land. 10 E. 4.
14. d.(w.)[10.]
(n) Nor can felony be committed of bonds, notes, or other writings, that are securities
for a debt, because they derive their value from choses en action, which cannot be stolen.
DalL New Edit. p. 501, 8 Co. Rep. 33. but by a late statute 2 Geo. II. cap. 25. the steal-
ing of bonds, bills, notes, &c. is made felony with or without the benefit of the clergy,
'in the same manner as if the offender had stolen goods of the like value, with the money
secured by such bonds, &c.
owners, according to the quantity produced, to remove from the heaps of other miners
ore produced by them, and add it to tiieir own, in order to increase their wages, the ore
still remaining in the possession of the owners. Rex v. Webb, 1 M. C. C. R. 431. The
cases of Rex v. Fttrie, I Leach, C. C. 294. 2 East, P. C. 740. and Rex v, Farley, 2 East,
P. C. 740, relate to petty larceny, which is not now a distinct offence in England.
[8] In Cramp's case, 1 Car. Sf Pay. 658. where one took a horse and rode it away,
and then turned it loose, and the horse furniture was offered for sale, it was held to be a
larceny of the furniture and not of the horse. See also Phillips's case, 2 Russ. C. Sf AL
97. 2 East's P. C. 662. Rose, on Cr. Ev. 472.
[10] See Walker's case. Mood. R. 155. Vyse's case. Id. 218. Clarke's case, R. Sf R.
181. U. S.\. Moullon. 5 Mason Rep. 557. Westhur's case, 1 Leach, C. C. 12. U. S. y,
Davis, 5 Mason's R. 356. Bingley's case, 5 Car. Sf Pay. 603.
[9] Of the thing taken. — It is enough to make the crime larceny that the thing stolen
is of any pecuniary value, or valuable to the owner or person having a general or spe-
cial property or interest in it, or right of possession of it, though it be not of any value
to sell. Rose, on C. Evid. 5\2; Phippoe's case, 2 Leach, C. C. 673; Bryant's case,
2 S. C. Law. Repos. 26t); The People v. Holbrook, 13 Johns. R. 90; 2 Russ. on Crim.
62; Payne v. The People, 6 Johns. R. 103.
At common law a chose in action is not the subject of larceny. Culp. v. The State,
1 Port, R. 33.
But semble that bank-notes were not chattels within the meaning of Stats. 3 Will. ^
M. c. 9, and 5 Anne, c. 31. Rex v. Morris, 1 Leach, C. C. 468; .2 East, P. C. 748;
eee post in this note.
Money was not within the meaning of the words "goods and chattels," in the
HISTORIA PLACITORUM CORONA. 510^
2. Neither can larciny be committed of things, that adhere to the
freehold, as trees, grass, bushes, hedges, stones or lead of a house, or
the hke.(o)
(0) But now by 4 Geo. II. cap. 32. it is felony to steal, rip, cut, or break with intent to
steal any lead, iron bar, iron gate, iron rail or palisado, fixed to any house, or out-house,
or fences thereunto belonging, and every person, who shall be aiding or abetting, or shall
buy or receive any such lead, S^c. knowing the same to be stolen, is subject to the same
punishment.
Statutes 3 Will. 4- M. c. 9, and 5 Anne, c. 31. Rex v. Guy, 1 Leach, C. C. 241 ; 2 East
P. C. 748; Rex v. Davidson, 1 Leach, C. C. 242. '
But rc-issuable notes, if they cannot properly be called valuable securities whilst in
the hands of the maker, may be called (in an indictment) "goods and chattels."
U. S. V. Moulton, 5 Mason R. 537; Rex v. Vyse, Ry. 4- M. C. C. 218, cited infra.
A check on a banker's, written on unstamped paper, payable to D. F. J.^ and not
made payable to bearer, is not a valuable security within 7 4' 8 Geo. 4.c. 29. s. 5. Rex v.
Yeates, Car. C. L. 273, 333, R. Sf M. C. C. R. 170. Held, not to be a felony within
2 Geo. 2 c. 25, to steal bankers' notes completely executed, but which have never been
put into circulation, on tiie ground that no money was due upon them. Anon. 2 Russ.
C. S( M. 147; 2 Leach, C. C. 1061 n.
It has been held in this country, that bank bills complete in form, but not issued, are
the property of the bank ; and may be so treated in criminal proceedings for re-
ceiving them, with knowledge of their having been stolen. The People v. Wiley,
3 HiWs N. Y. Rep. 194.
Stealing re-issuable notes after they have been paid, and before they have been re-
issued, did not subject the party to an indictment on the 2 Geo. 2. c. 25, for stealing
notes, but he may be indicted for stealing paper with valuable stamps upon it. Rex. v.
Clark, R. 4- R. C. C. 181, 2 Leach, C. C. 1036.
Country bankers' notes which have been paid by the bankers in London, at whose
house they were made payable, and by them sent down to country bankers to be re-
issued, on the way they were stolen, and the prisoner was indicted for receiving
them. The indictment, in some counts, charged the notes to be valuable securities,
(see Wilson v. The State, 1 Porter, R. 118,) and in others as pieces of paper of the
goods and chattels of the country bankers. The prisoner was convicted, and the
conviction held right. Some of the judges doubted whether these notes were to be con-
sidered as valuable securities, but if not they all thought they were goods and chattels.
Rex v. Vyse,R. Sf. M. C. C. 218.
Exchequer bills, although signed by a person not authorized to do so, are securities
and effects within the Statute 15 Geo. 2 c. 13. s. 12. Rex v. Aslett, 1 N.R. I; 2 Leach,
C. C. 958 ; R. Sf R. C. C. 67.
The halves of country bank-notes, sent in a letter, are goods and chattels, and a per-
son who steals them is indictable for larceny. Rex v. Mead, 4 Car. Sf P. 535.
Dollars or Portugal money, not current by proclamation, are not goods within the
meaning of the 24 Geo. 2. c. 45. Rex v. Leigh, 1 Leach, C. C. 52 ; S. P. Rex y. Grimes,
2 East, P. C. 646.
A larceny may be committed of window-sashes, which are neither hung nor beaded
jnto the frames, but merely fastened by lathes nailed across the frames to prevent their
shaking out; as they are not fixed to the freehold. Rex v. Hedges, 1 Leach, C. C. 201;
2 East, P. C. 590 n.
Piratically stealing a ship's anchor and cable is a capital offence by the marine laws,
and triable under the 28 Hen. 8. c. 15; 39 Geo. 3. c. 37, not extending to this case.
Rex V. Curling, R. ^ R. C. C. 123.
And the stealing is equally an offence, although the master of the vessel concur in it,
and although the object is to defraud the underwriters for the benefit of the owners, lb.
The Ownership. — Property cannot be laid in a person who has never had either real or
constructive possession. Rex v. Adams, R. S^ R. C. C. 225. 2 Russ. C. 4- M. 113.
In an indictment for larceny the property stolen may be described as the real owner's
510'' HISTORIA PLACITORUM CORONiE.
But if they are severed from the freehold, as wood cut, grass in
cocks, stones digged out of a quarry, then felony may be committed
by stealing. of tliem, for they are personal goods. IS //. 8. 2. b. 12.
8 E. 3. Coron. 119.
although it was never actually in his possession, but in the possession of his agent only.
Rex V. Remnant, R. 6( R. C. C. 136. 2 Rvss. C. 4- M. 168.
The wife of ^. was employed by her fatlier to sell sheep and receive the amount at K.
She did so; but before she left A'. a £5 note wliich she received in payment for the sheep
was stolen from her: — Hehl, that in an indictment for a larceny the note was properly
described as the property of the husband. Rex v. Roberts, 7 Car. Sf P. 485.
In an indictment for larceny of goods, the property of a peer who is a baron, the goods
may be laid as the goods and chattels of" G. T. R. Lord Z>." without styling him Baron
D. although the more proper way to describe the peer is by his ciiristian name and his
degree in the peerage as duke, earl, baron, or the like. Reg, v. Pitts, 8 Car. Sf P. 771.
S. P. Reg. V, Caleij, 5 Jur. 709.
If goods seized under a writ ofji.fa. are stolen, they may be described as the goods
of the party against whom the writ issued ; for though they are in custodid legis, the
original owner continues to have a property in them till they are sold. Rex, v. Eadslall,
2 Russ. C. Sf M. 158. 197. An indictment for stealing the wearing apparel of a son
who is an apprentice to his father, and furnished with his clothes in pursuance of his
indenture must lay them to be the propert)? of the son and not of the father. Rex v.
Forsgate, 1 Leach, C, C, 463.
In an indictment for stealing property which had belonged to a deceased person who
appointed executors who would not prove the will, it was held the property must be laid in
the ordinary, and not in a person who alter the commission of the offence, but before the
indictment, had taken out letters of administration with the will annexed, because the
rights of an administrator only commence from the date of the letters as distinguished
from those of an executor, which commence not from the granting of the probate, but
from the death of the testator. Rex v. Smith, 7 Car. Sf P. 147.
Where two had jointly stock upon a farm, and one died leaving several children: —
Held, that the property in sheep stolen was properly alleged to be in the survivor and the
children, the former swearing that he considered himself to hold one moiety for the bene-
fit of the latter. Rex v. Scott, 2 East, P. C. 655. R. S( R. C. C. 13.
Semble, that the property might have been laid in the survivor alone as he was in pos-
session of tlie children's moi.ety as their agent. lb.
D. and C. were partners, C. died intestate, leaving a widow and children ; from the
time of his death the widow acted as partner with D. and attended the business of the
shop. Three weeks after C's death part of the goods were stolen ; they were described
in the indictment as the goods of D. and the widow: — Held, that the description was
right. Rex v. Galy, R. &,■ R. C. C. 178. 2 Russ. C. Sf M. 161.
The goods in a dissenting chapel vested in trustees, cannot be described in an indict-
ment as the goods of a servant who has merely the custody of the chapel, and things in
it to clean and keep in order, althougli he has the key of the chapel, and no other person
but the minister has another key. Rex v. Hutchinson, R. Sf R, C, C, 412. 2 Russ,
C. SfM. 158.
A bible had been given to a society of Wesleyans ; and it had been bound at the ex-
pense of the society. B. stated that he was one of the trustees of the chapel, and also a
member of the society. No trust-deed was produced : — Held, that in an indictriient foi*
stealing the bible the property was rightly laid in B. and others. Rex v. Boulton, 5 Car,
Sf P. 537.
An unqualified person may have a sufficient legal possession of game to support an in-
dictment for stealing it from him. Anon. 2 Russ. C. Sf M. 152.
A box belonging to a benefit society was stolen from a r(5om in a public iiouse. Two
of the stewards had keys of this box; and by the rules of the society the landlord ought
to have had a key, but in fact he had not. Held, that the prisoner might be convicted
on a count laying the property in the landlord alone. Rrx v. Wy7ner, 4 Car. Sf P. 391.
An indictment for stealmg goods may under the 55 Geo. III. c. 137, state them to be
the goods of the overseers of the poor for the time being of the parish of A.; for this will
HISTORIA PLACITORUM CORONiE. SIO-^
Bat if a man come to steal trees, or the lead of a church or house,
and sever it, and after about an hour's time, or so, come and fetch it
away, this hatli been held felony, because the act is not conlinuated
but interpolated, and in that interval the property lodgeihin the right
import that they belong^ed at the time of the theft to the persons who were the then over-
seers. Hex V. Went, R. Sf R. C. C. 359. 2 Russ. G. Sf M. 167.
In stealing from the Invahd-office at Chelsea, the property must be laid in the house
of the king. Rex v. Peyton, 1 Leach, C. C. 324. 2 East, l\ C. 501. ■
Goods belonging to a gnest stolen at an inn may be laid to be the property either of the
innkeeper or guest. Rex v. Todd, 1 Leach, C C 557. n.
So goods stolen from a washerwoman, may be laid to be her property. Rex v. Par-
leer, 1 Leach, C. C. 357, n.
So in the case of an agister who takes in sheep to agist for another, they may be laid
to be his property. Rex v. Woodward, 1 Leach, C. C. 357 n.; 2 East, P. C. G53.
The coach-glass of a gentleman's coach standing in a coachmaster's yard, may be laid
to be the property of the coachmaster. Rex v. Taylor, 1 Leach, C. C. 356 ; 2 East, P,
C. 653.
The property in goods stolen, held to be properly alleged to be in the driver of a
coach from the boot of which they were taken* Rex v. Deakin, 2 East, P. C. 653 ; 2
Leacfi, C. C. 862.
In larceny, the goods of a furnished lodgings must be described as the lodger's goods,
not as the goods of the original owner. Rex v. Belstead, R. S( R. C C 411; 2 Russ. C.
Sf M. 154; Rexv. Brunswick, 1 R. Sf M. C. C. R.26; 2 Russ. 154.
If a corn factor purchases a ship luden with corn, and send his lighter to fetch it from
the ship to his wharf, a delivery of the corn on board the lighter puts it into the possession
of the corn factor, altliough the lighter-man never delivers it at the factor's wharf. Rex
V. Spears, 2 Leach, C. C. 825 ; 2 East, P. C. 568.
If a corn factor purchase the cargo of a vessel laden with corn, and send his servant with
a lighter to fetch it from the ship, in loose bulk, and the servant contrive to have a certain
portion of it put into sacks by the meters on board the ship, and take the corn so sacked
feloniously away in the lighter immediately from the ship, he may be indicted for steal-
ing tlie property of tlie corn factor, although it was never put into his lighter, or other-
wise reduced into the corn factor's possession. Rex v. Ahrahdt, 2 Leach, C C 824 ;
2 East, P. C. 569.
An indictment for larceny, laying the goods stolen to be the property of Victory Ba.
roness Turkheim, is good, although her name is Selinda Victoire. Rex v. Sulls, 2 Leach,
C. C. 861.
An indictment for the larceny of property belonging to trustees who are not incor-
porated, must lay the property to be in them as individuals, subjoining a description of
tile character in which they are authorized to act. Rex v. Shenington, 1 Leach, C, C. 513.
Indictment. — Though to make the thing the subject of an indictment for a larceny,
it must be of some value, and stated to be so in the indictment, yet it need not be of the
value of some coin known to the law, that is to say a farthing at the least. Reg. v. Mor-
ris, 9 Car. Sf P. 349 ; see ante the commencement of this note.
An indictment for stealing a bank note did not conclude, contra forviam. statuti — Held,
by the fifteen judges, that it was bad. Rev v. Pearson, 5 Car, Sf P. 121 ; S. P. Ratcliffe's
case, 1 M. C. C. R. 313 ; 2 Lewin, C. C. 57.
In order to warrant a sentence of transportation for life on an indictment for a larceny,
after a previous conviction for felony, the indictment need not conclude, contra jo rmam
slatiili. Reg. v. Blea, 8 Car. Sf P. 735. , ;
Where, on the trial of a man and woman for larceny, it appears by the evidence that
they addressed each other as husband and wife, and passed and appeared as such, and
were so spoken of by the witnesses for the prosecution, it will be for the jury to say
whether they are satisfied that they are in fact husband and wife, even though the
woman pleaded to tlie indictment which described lier as " a single woman." Reg. v.
Woodw'ird, 8 Car. Sf P. 561.
In such a case, a female prisoner ought not to be indicted as a single woman. lb.
In an indictment against a servant of the "West India Dock Company" for stealing a
quantity of canvass and hcssen belonging to the company from their warehouses, it
510"» HISTORIA PLACITORUM CORONA.
owner as a chattel, and so it was agreed by the court of king's bench ,
9 Car. 1. upon an indictment for stealing the lead of fVesiminster-
Abbey. Dalt. cap. 103.;;. 166. (/j)
(p) New Edit. cap. 15G.p. 501.
Was held sufficient to state.the property to be "the goods and chattels of the West India
Company," and not necessary, notwithstanding the words of the 1^2 Will. 4 c. 11. s.
13'.i, to allege in addition that it was feloniously taken from the said company. Reg. v.
Stokes, 8 Car. Sf P. 151. _ ' ' _
An indictment on 2 Geo. 2. c. 25. alleged the stealing of a bill of exchange in L. where-
on the names of vl. and B. were endorsed, which was the case when the bill was stolen
at M., and it appeared that the bill had an additional name as an indorsee when negoti-
ated al L.: Held, no variance. Rex v. Austin, 2 East, P. C. 602.
An indictment for larceny of a promissory note, may describe it generally, as " one
.promissory note for the payment of one guinea," without setting the note forth. Rex v.
Milnes, 2 East, P.C. G02.
In an indictment for larceny, if the thing stolen be described as a bank post-bill, be
not set out, the court cannot take judicial notice that it is a promissory note, or that
it is such an instrument as under stat. 2 Geo. II. c. 25, may be the subject of larceny,
although it be described as made for the payment of money. Rex v. Chard, R. Sf R.
C. C. 488.
Where an indictment described a bank note as signed by A. H. for the Governor and
Company of the Bank of England, and a prisoner was convicted: such conviction was
held bad, there being no evidence of A. H.^s signature. Rex v. Craven, R. ^ R. C. C. 14.
2 East, P. C. 601.
Describing a bank note " as a certain note, commonly called a bank note," was not
such a description as will warrant a conviction on 2 Geo. II. c. 25. for stealing it. lb. See
as to stealing bank notes, Spangler v. Com. cited infra. Com. v. Messenger, 1 Binn.
R. 273. Com. v. McDowell, 1 Browne's, R. 360. Stewart v. The Com. 4 S^ S^ R. 194. 2 Ruis.
on C. 1. Note to American Ed. 1845. -
An indictment for steaHng £10, in monies numbered, is not sufficient, some of the
pieces of which that money consisted, should be specified. Rex v. Fry, R. Sf R. C. C. 482.
2 Russ. C. Sf M. iHd.
In an indictment on stat. 2 Geo. II. c. 25. it was improper to lay bank notes as chat-
tels, but that word might have been rejected as surplusage, if the indictment be in other
respects sufficient. Rex v. Sadi, 2 East, P. C. 601.
A set of new handkerchiefs in a piece, may be described as so many handkerchiefs,
though they are not separated one from another, if the pattern designates each, and they
are described in the trade as so many handkerchiefs. Rex \. Niles, 1 R. Sf M. C. C, R.
25. 2 Russ. C. ^ M. 169. ~
Where an indictment for stealing in a dwelling-house, alleged it to be the dwelling-
house of Saiah Lunns, a.nd it appeared in evidence that her name was Sarah London:
Held, that the varistnce was fatal to the capital part of the indictment. Rex v. Woodward^
1 Leach, C. C. 253. n. See The Slate v. France, 1 Overton, ( Tenn.) Rep. 434.
In cases of larceny of animals, /cr<E natura, the indictment must show that they were
either dead, tame, or confined, otiierwise they must be presumed to be in their original
state. Rex v. Rough, 2 East, P. C. 607. And see Rex v. Hudson, 2 East, P. C. 611.
And it was not sufficient to add " of the goods and chattels," of such a one. Rex v. Rough,
2 East, P. C. 607. And see Rex v. Hudson, 2 East, P. C. 611.
An indictment for stealing a dead animal should state that it was dead ; for upon a
general statement that a party stole the animal, it is to be intended that he stole it alive.
Rex v. Edwards, R. Sf R. C. C. 497.^ 2 Russ. C. S^ M. 171.
Upon an indictment for stealing a live animal, evidence cannot be giv*n of stealing a
dead one. lb. But in the case of Rex v. Puckering, 1 M. C. C. R. 242, A. was in-
dicted for receiving a " lamb;" when he received the lamb it was dead, and it was held
by the fifteen judges that the indictment was sufficient, it being immaterial as to the
prisoner's oiTence, whetlier the lamb was alive or dead, his off"ence, and the punishment
for it, being in both cases the same, this case appears to overrule the case o^ Rex v. Ed-
wards, supra.
An indictment for stealing some live tame turkeys was laid in the county of H. it ap-
HISTORIA PLACITORUM CORON.^. 510"
3. Neither of com standing upon the ground, for tho it be a chat-
tel personal, and goes to the executor, yet it savours of the realty,
while it stands so. Co. P. C.p. 109.
4. Larciny cannot be committed of such things, whereof no man
peared that the prisoner stole them alive in tlie county of C. and killed them there, and
brought them into the county of//. Held, that as the prisoner had not the turkeys in a
live state, in the county of//, the charge as laid was not proved, and that tlie word " live"
in the description, could not be rejected as surplusage, and therefore, that the indictment
was bad. Rex v. Halloway, 1 Car. Sf P. 128.
If a parish be partly situate in the county of W. and partly in the county of 5*. it is
not sufficient in an indictment for larceny, to state the offence to have been committed at
the parish of //. in the county of W. Rex v. Perkins, 4 Car. Sf P. 363.
Evidence and Trial. — Where a person went into a shop for the purpose of purchasing
a ruby pin, and after selecting one, which was put into a box, while the young man who
was serving him was absent for about a minute, took it out of the box, and put it in his
stock, and afterwards went into the shawl department of the shop to purchase other arti-
cles, saying that he would return and pay fbr both together, but was allowed to go away
without inquiry being made as to whether he had paid in the shawl department, and a
bill, including the price of the pin, was sent the next day to the house where he was
residing : Held, on the trial of the prisoner for stealing the pin, that under these circum-
stances, it was for the jury to say whetlier there was any intention to steal the pin, and
whether there was or was not credit given for it; and also, that the prosecutors ought to
have called the person who served in the shawl department; and their not doing so
was a circumstance which would justify the jury in looking with some suspicion at
the case, Reg. v. Box, 9 Car. S^ P. 126.
A. went to the shop of B , and asked for shawls for Mrs. D. to look at; B. gave her
five; she pawned two, and three were found at her lodgings; Mrs. D. was not called as
a witness : Held, that A. on this evidence could not be convicted of a larceny in stealing
the goods of B. Rex v. Savage, 5 Car. Sf P. 143.
A prisoner was indicted for stealing three articles. It appeared, that having taken
the first article, he returned in about two minutes, and took the second, and then
returned in half an hour and took the third : Held, that the last taking was a distinct
felony, and could not be given in evidence with the other two; but that the interval of
time between the first and second taking was so short that they must be considered as
parts of the same transaction. Rex v. Birdseye, 4 Car. ^ P. 386.
■ If the only evidence against a prisoner indicted for larceny be, that the goods were
found in his possession, sixteen months after they had been stolen, the judge will
direct an acquittal without calling on him for his defence. Rex v. , 2 Car. Se
P. 459.
Where property, recently stolen, is found in possession of a party under circum-
stances which show it the more probable that he was made the instrument of others, for
tfie purpose of disposing of it, than the party who actually took it, the presumption of
guilt of larceny, arising from the recent possession, does not rise against him. Retr. v
Collier, 4 Jur. 703.
Stolen property usually passes through many hands. If, therefore, the interval of
time of the loss and the finding be considerable, the presumption against the party
having possession is much weakened. CocJiins''s case, 2 Leivin, C. C. 235.
The defence to a charge of stealing, that the prisoner pledged the property, intending
to redeem and then restore it, is a defence not to be generally encouraged, thouo-h if
clearly made out in proof, it may be allowed to prevail. The rule for the jury's
guidance in such a case seems to be, that if it clearly appear that the prisoner only
intended to raise money upon the property fbr a temporary purpose, and at the time of
pledging the article had a reasonable and fair expectation of being enabled shortly, by
the receipt of money, to take it out and restore it, he might be acquitted ; but otherwise
not. Reg. V. Phetheon, 9 Car. Sf P. 553,
A prisoner was indicted for stealing carpenter's tools, and the only evidence against
him was, that the stolen property was in his possession three months after it was
lost: Held, that this was not such a recent possession as to put the prisoner upon
VOL. I. — 45
510^ HISTORIA PLACITORUM CORONA.
hath any determinate property, tho the things themselves are capable
of property, as of treasure trove, or wreck till seized, tho he, that
hath them in point of franchise, may have a special action against
him, that takes them.
5. Larciny cannot be committed of things, that are ferx naturx^
unreclaimed, and nulHus in bonis, as of deer or conies, tho
[ 511 3 in a park or warren, fish in a river or pond, wild-fowl, wild
swans, pheasants.
Eiit if any of these are kild, larciny may be committed of their flesh
or skins, because now they are under propriety.
Of domestic cattle, as sheep, oxen, horses, (^r. or of domestic fowls,
as hens, ditcks, geese, ^-c. and of their eggs, larciny may be commit-
ted, for they are under propriety, and serve for food.
Of those beasts or birds, that are ferse naturd, but reclaimed and
made tame or domestic, and serve for food, larciny may be committed,
as deer, conies, pheasants, partridges, but then it must be, when he,
that steals them, knows them to be tame, and so of reclaimed hawks,
and likewise of the young of such larciny may be committed, but of
the young of those beasts or birds, that are ferse naturd, tho in a
park, and tho the owner hath a kind of property ratione loci,privi-
legii (§• impotentix, yet larciny cannot be committed of them, as of
young fawns in a park, young conies in a warren: of young pigeons
in a dove-coat, fish in a trunk or net, larciny may be committed. [11]
stating how he came by it, and an acquittal was directed. Rex v. Adams, 3 Car. Sf
F. 6U0.
Non-delivery upon request is evidence of a tortious conversion. i?ex v. Semple,
1 Leach, C. C. 424, 2 East, P. C. 691.
On an indictment for larceny the wife of a receiver who is not indicted, can-
not be compelled to give her evidence against the prisoner. Rex v. Ast, Car.
C. L. 66.
If it is probable that all the goods stolen were not stolen at one time, but it is still
possible that they might have been so, the judge will not put the prosecutor to elect to
go upon the stealing of some particular article or articles. Rex v. Dunn, Car.
C.L. 82.
Larceny must be tried in tiie county wliere committed, but the offence is considered
as committed in every county into which the thief carries the goods. Rex v. Thomp-
son, 2 Russ. C. S( M. 174.
Therefore if a man steal goods in the county of A. and carry them into the county of B.
he may be indicted for the larceny in the latter county. lb.
But if a compound larceny be committed in one county, and the offender carry the
property in anotlier, althougli he may be convicted in tlie latter county of the simple lar-
ceny, he cannot be there convicted of the compound larceny. lb.
Wliere four stole goods in the county of G. and divided them in that county, and then
carried their sliares into the county of W. in their separate bags : Held, that it was not
a joint larceny in W. but separate larcenies in that county, and the subject of different
prosecutions. Rex v. Baniet.l, 2 Russ. C. Sf M. 175. And see Rex v. County, 2 Russ. C.
£f M. 127-175.
On an indictment for tlie larceny of a bill of excliange, obtained from the prosecutor
under a pretence of discounting it, parol evidence of the bill may be g ven after proof of
a subpwna duces tecum, given to the person in whose possession it was shovvn to be,
shortly previous to the trial, but who did not attend. Rex v. Aickles, 1 Leach, C. C 2^4.
2 East, P. C. 675,
[11] If pigeons are so far tame that they come home every night to roost in wooden
boxes, hung on the outside of the house of their owner, and a party come in the night
and steal them out of these boxes, this is a larceny. Rex v. Brooks, 4 Car. Sf P. 131.
HISTORIA PLACITORUM CORONA. 511
Of yonng hawks in the nest larciny may be committed, but not of
hawks eggs, but the takers are punisliable by fine and imprisonment
upon the statute of 11 H. 7. cap. 17. and 31 ^.8. cap. 12.(r)
Of wild swans, nor of their young, larciny cannot be committed,
but if they be made tame and domestic, or if they be marked and
pinioned, it is felony to take them or their young.
But it seems, that if they be marked, and yet flying swans, that
range abroad out of the precincts or royalty of the owner, it is not
felony to kill and take them, because they cannot be known to belong
to any: these several instances and differences may be collected from
Co. P. C.p. 109, 110. Dalt. cap. 103. (.s) and 7 Co. Rep. 15. b. Case
de Swans (§' libros ibi.
6. Larciny cannot be committed in some things, whereof,
the owner may have a lawful property, and such whereupon [ 512 1
he may maintain an action of trespass, in respect of the base-
ness of their nature, as mastiffs, spaniels, gray-liounds, blood-hounds,
or of some things wild by nature, yet reclaimed by art or industry,
as bears, foxes, ferrets, 4*c. or their whelps, or calves, because, tho
reclaimed, they serve not for food but pleasure, and so differ from
pheasants, swans, ^"c. made tame, which, tho wild by nature, serve
for food.
Only of the reclaimed hawk, in respect of the nobleness of its na-
ture and use for princes and great men, larciny may be committed,
if the party know it be reclaimed.
V, What shall be said the personal goods of any person, or of an-
other person. [12]
Every indictment of larciny ought to suppose the goods stolen to
be the goods of somebody.
An indictment of larciny of the goods ciijusdam ignoti is good, for
it is at the king's suit, and tho the owner be not known, the felony
must be punished. 21 H. 6. Enditement 12.
And yet 10 H. 6. Enditement 9. an 'md'xctmQUi quod A..verbe7'avit
B. and 20 jacks ,/^re/i7 20s.feionice cepil,he\d good without showing
whose they were.
But an indictment of ..^. that he is communis latro without show-
ing in particular what he stole, is not good. 22 Jissiz. 73.
An indictment, that bona domus Sj- ecclesise tempore vacationis,
(>■) By this statute it is made felony to take hawks eggs out of any nests within tlie
king's lands, but this is repealed by the general words of 1 Mar. cap, 1.
(s) New Edit. cap. 156. p. 499.
Ferrets, though tame and saleable, cannot be the subject of larceny. Rex v. Searing, R.
4f R. C. C. 351, 2 Russ. C. Sf. M. 153, and note 20, post, p 516. See^indlay v. Bear,
8S.SfR.51l. Norton v. Lodd, 5 N. H. Rep. 203. Cum. v. Chase, 9 Fich, R. 15. Wallis
T. Mease, 3 Binn. R. 546. Tibbs v. Smith, T. Raym, 33. Brock's case 4 Car. &■ Fay. 131.
Ward V. TJie People, 3 Hill, 395.
[12] See 2 East's P. C. 587. 2 Russ. on Crimes, 136. 1th ed. 3 Bac. Ab. Felony.
4 Bl. Com. 232. Hodges Cases, 2 East's P. C. 590. n. 1 Leach, 201. Lee v. Ridsun,
7 Taunt. R. 191.
512 HISTORIA PLACITORUM CORONA.
or bona capellse in ciistodia J. S, felonicl cepit, is good, 7 E. 4. 14.
b. Co. P. C.p. 110. Stamf. P. C.p. 25. b. 8^ 95. b.
If a man steal bells, or other goods belonging to a church, he may
be indicted, quod felonice, Sj-c. cepit bona parochianorum de B. M. 31
Sf 32 Eliz. B. R. Hadman and Green versus Ringwood,{t) and yet
an action of trespass lies for the churchwardens in such case, qusere
bona S}- catalla parochianorum in custodid sua, or iji custodid A. B.
prxdecessorum suorum gardianoruni ecclesiss cepit <§' asportavit ad
daynnum parochianorum. T. 36 Eliz. B. R. Alet hod and Barfoot.
Dyer 99.
\i Jl. have a special property in goods, as by pledge, or a lease for
years, and the goods be stolen, they must be supposed in the indict-
ment the goods oi A.
If Jl. bail goods to B. to keep for him, or to carry for him,
(^513 ] and B. be robbed of them, the felon may be indicted for lar-
ciny of the goods of A. or B. and it is good either way, for
the property is still in A. yet B. hath the possession, and is charge-
able to A. if the goods be stolen, and hath the property against all the
world but A.
A. is indicted, that he stole the goods of B. and it appears in the
indictment, that B. was a feme covert at the time, the indictment is
i;aught, for they are the goods of her husband, and so if A. be in-
dicted for stealing the goods of B. and upon the evidence it appears,
that B. had neither interest nor possession in the goods, or was a
feme covert, the party ought to be acquitted, but then he may be
presently indicted de novo for stealing the goods of the husband or
true proprietor ; and so it once happened before me at Aylesbury
1667. in the case oi Ernes, who was convicted and executed upon a
second indictment.
Regularly a man cannot commit felony of the goods, wherein he
hath a property. [13]
If A. and B. be joint-tenants or tenants in common of an horse,
it) Cro. Eliz. 145, 179.
[13] To whatever extent, and for whatever purpose, any one has a property in or right
to a thing stolen, to such extent, and in respect to such purpose, it is stolen from him,
and a tlieft is from all the proprietors except in the case of theft by one of the owners, in
which case it can be a tlieft only from the others. Cowinnr v. Snow, 11 Mass. R. 415.
Where an owner, whether his property be absolute or modified, partial or of the entire
thing, fraudulently for his own benefit takes it from another in whose hands it is, with
intent to subject him to the loss, and despoil him of the value of the thing, the act is, in
its essential character, a theft ; and so it has been held in direct cases at the common
law; and it is now established beyond question, that an absolute owner may steal from
another what belongs to himself. See ante, page 504, note 2, and authorities there
cited. Report of the Penal Code of Mass. p. 11. Palmer v. The People, 10 Wend. R.
1G5. By the Slat. 7 4" 8 Geo. IV. FeeVs Act, c. 29, s. 45, the stealing of a chattel or a
fixture by the lessee is made larceny. The tenant in this case has the exclusive riglit of
actual possession under his contract; that is, one who is possessory owner may commit
larceny of the thing of which he is such owner in respect to the proprietary owner.
The indictment is as in any other case of simple larceny. 1 Archb. Peel's Acts, 406;
The People v. Wiley, 3 HiWs N. Y. R. 199.
HISTORIA PLACITORUM CORONA. 513
and f^. takes the horse, possibly animo furandi,YQX this is not felony,
because one tenant in common taking the whole doth but what by
law he may do. [14]
Yet if ./?. take away the trees of B. and cut them into boards, B.
may take them away, and it cannot be felony; so if t^. take the
cloth of B. and make it into a doublet, B. may take it, and it cannot
be felony. M. 2 Eliz. Mof-e n. 61. p. 19.
It\y2. take the hay or corn of B. and mingles it with his own heap
or cock, or if ./^. take the cloth of B. and embroider it with silk or
gold, B. may retake the whole heap of corn, or cock of hay, or gar-
ment and embroidery also, and it is no felony, nor so much as a tres-
pass. H. 36 B/iz. B. R. Popham n. 2 p. 38.
Yet if t/?. bail goods to B. and afterwards animo furandi steals
the goods from B. with design probably to charge him for them in
an action of detinue, this is felony; quod vide 7 H. 6.43. a. Co. B.C.
p. 110. Stamf. P. a. p. 26. a.
Tlie wife cannot commit felony of the goods of her husband, for
they are one person in law, 21 H.%. Corone455. Co. P. C.
p. 110. and therefore, if she take or steal the goods of her f 514 ~\
husband, and deliver them to B. who knowing it, carries
them away, this seems no felony in B. for it is taken, quasi by the
consent of her husband, (w) yet trespass lies against B. for such
taking, for it is a trespass, but in favorum vitae it shall not be ad-
judged a' felony, and so I take the law to be, notwithstanding tlie
various opinions. Dalt. cap. 104. p. 268, 269. ex lectura Cooke.{x)
But if the husband deliver goods to B. and the wife had taken
them feloniously from B. this had been felony in the wife, Dalt.
cap. 104. p. 268. for if the husband himself had taken them felo-
niously from B. it had been felony, as hath been said; but then it
must in both cases be a taking animo furandi.
But if a man take away another man's wife against her will citm
bonis viri, that is felony by the statute of Westm. 2. cap. 34. which
saith, Haheat rex sectam de bonis sic asportatis,{y) 13 Assiz. 6.
But if it be by the consent of the wife, tho against the consent of the
husband, it seems to be no felony, but a trespass, for it cannot be a
felony in the man, unless it be a felony in the woman, who consented
to it, 13 JJssiz. 6. but Ballon thinks it felony, ■^^i^■ supra.
Yet in some cases the principal agent mayl3e excused from felony,
and yet he, that is principal in the second degree, may be guilty, as
if a man put a child of seven years to take goods, and bring them to
him, and he carry them away, the child is not guilty by reason of
his infancy, yet it is felony in the other.
(«) But in case B. were her adulterer, Mr. Ballon thinks it would be felony, for in
such a case no consent of the husband can be presumed. Dalton uhi infra.
(x) New Edit. cap. 157. p. 504. (y) 2 Co. Inslit. 434.
[14] See 2 East's, P. C. 557; Rose, on Crim. Ev. 514; Bramley'a case, Russ, &
Ry. 478; The- teople v. Gay, 1 HilVs R. 364.
514 HISTORIA PLACITORUM CORONA.
If Jl. die intestate, and the goods of the deceased are stolen before
administration conjmitted, it is felony, [15] and the goods shall be
supposed to be bona episcopi de D. ordinary of the diocese, and if
he made B. his executor, the goods shall be supposed bona B. tho
he halh not proved the will, and they need not sliew specially their
title as ordinary or executor, because it is of their own pos-
[5153 session, ui which case a general indictment, as well as a
general action of trespass lies without naming themselves
executor or ordinary, and so for an administrator.
But if servants in the house imbezzle their master's goods after his
decease, this seems not to be felony at common law, but only tres-
pass, because the goods were quodammoclo in their custody ; and
therefore remedy is provided by the statute of 33 H. 6. cup. l.[16]
[15] See Davis's case, 2 S. C. Law Rep. 291; Smith's case, 7 Carr Sf Pay, 147;
ScoWs ca.se, Russ. Sc Ry. 13; Gaby's case. Id. 178; Wonson v. Sayward, 13 Rick.
R. 402.
[IG] The statute of 33 Hen. VI. c. 1. provides against larceny by household servants
of the goods of their master after the decease of the master. Tlie Slat. 21 Hen. Vlll. c. 7.
provides that it shall be felony in a servant " to whom any caskets, jewels, money, goods
or chattels shall be delivered to keep, to withdraw iiimself and go away with said caskets,
^c, with intent to steal tlie same and delraud his master thereof, contrary to the trust
so put in him;" and also makes it felony in a servant who, " being in the service of his
master without the aSsent of his master, embezzles the said caskets, »Slc., and converts
the same to his own use with purpose to steal it;" reciting at the same time that it was
doubtful whether this was felony at tlie common law. Mr. Russell, vol, ^.p. 1217. Am, Ed,
1824, remarks that, " this statute is little resorted to at the present day. The clear maxim
of the common law is, that where a party has only the bare custody of the goods of
another, the legal possession remains in the owner, and the party may be guilty of tres-
pass and larceny in fraudulently converting the same to his own use. So that it has
been tliought to be more reasonable and consistent to consider this statute as in the
nature of a declaratory act." See Paradise's case, 2 East, P. C. 565. of a servant's taking
bills of exchange; Robinson's case, 2 East, P. C. 565. of a carter's taking a package of
goods which his master in whose general employment he was, entrusted to him to carry ;
•Shear's case, 2 Leach, 825 ; 2 East, P. C. 568. of a lighterman who sold part of a lighter-
load of oats, which he was sent to fetch from on board of the ship; Lavender's case,
2 Ritss. 1221. Am. Ed. 1824. of money given to a servant to leave with another; Chip-
chase's case, 2 Leach, 699. S. C. 2 East, P. C 567. of a clerk's stealing a bill of exchange
from the desk of which he had charge. See also Smith's case, 2 Riiss. 208; R. Sf R. 267.
Wilkinson's case, 2 Russ. 201. Wait's case, 2 Russ. 204; & C. 2 East, P. C. 570; S. C.
1 Leach, 33; Bazely's case, 2 East, P. C. 571; S. C. 2 Leach, 835; Hammon's case,
2 Russ. 202; S. C.2 Leach, 1083; Murray's case, 2 East, P. C. 683; Jenson's case,
Moody, 434; Clew's case, 4 Wash. C. C.R. 700; iHe^coZf s case, Moot/y, 433 ; Bull's c:ise,
2 East, P. C. 572 ; S.C. 2 Leach, 841; Bass's case, 1 Leach, 251 ; Carr's case, 2 Russ.
208 ; R. Sf R. 98 ; Leach's case, 3 Stark, N. P. C. 70 ; 2 Deac. Abr. 780 ; Hartley's case,
2 Russ. 2U9; R. S^ R. 139; Thome's case, 2 East, P. C. 622; Squire's case, 2 Stark, N.
P. 349 ; Hutchinson's case, R. Sf R. 412; Eastall's case, 2 Russ. 197 ; Commonwealth v.
Morse, 14 Mass. R. 217 ; People \. Norton, SCowen, 137; Dillenhack v. Jerome, 7 Cowen,
294 ; HasseU's case, 1 Leach, 3 ; Baker's case, 1 Dow. 4- Ry. N. P. C. 19 ; 1 Deac. Abr.
778; Robinson's case, 2 Russ. 198; 2 East, P. C. 565; Harding's case, R. Sf R. 125;
White's case, 2 Ti/ler, 352; McNamie's case. Rose. jBr. 481; Moody, '3&S; Hughe's case.
Moody, 370; 2 Deac. Abr. 1667; Abrahat's case, 2 East, P. C. 569; S. C.2 LeacA, 968;
State Y. Self, I Boy. 242; Atkinson's case, 2 Russ. 201; S. C. 1 Leach, 302; n. (a.)
Harris's case, 2 Russ. C. &( M. 209; Spenser's case, Russ. Sf Ry. 299; ^^'illiams's case,
7 C. Sf P. 338; Clay's case, 2 East, P. C. 580; Beachy's case, Russ. Sf Ry. 319 ; S. C.
2 Russ. C. Sf M. 110; Williams's case, 6 Car. Sf Pay. 626; Biscall's case, 1 Id. 454;
Wittingham's case, 2 Leach, 912; Headge's case, Id. 1033; Freeman's, case, 5 Carr, 4f
P. 531 ; Hayden's case, 7 Id. 445 ; Howell's case, /J. 325 ; Prince's case, Moorf. ^ Mai,
HISTORIA PLACITORUM CORONA. 515
that if they appear not upon proclamation, they shall be attaint of
felony, but if they appear, they shall answer for it as a trespass.
Rut an indictment, quod invenit hominem mortiium, (§• felonict
furalus fuit diiaa tunicas without saying de bonis <§' cataUis of the
executor or ordinary, is not good, and therefore the party was dis-
charged. 11 i?. 2. Enditement, 27.
./?. digged up a dead body out of the grave, and stole his shroud,
and buried him again, tiiis is reported by Mr. Dalfon, cap. 103.
p. 266. to be no felony, but a misdemeanor, for which the party was
whipt. And accordingly I have seen it reported to be held 16 Jac.
in Nottingham's case,(r) quia nullius in bonis, but see Co. P. C.
p. 110. in Maine's case(a) ruled by the advice of all the judges to be
felony, and in the indictment the goods shall be supposed the goods
of the executor, administrator, or ordinary.
But it is held, that if ^. put a winding-sheet upon the dead body
of B. and after his burial a thief digs up the carcase and steals the
sheet, he niay be indicted for felony de bonis 4' catallis J2. because
it transferd no property to a dead man. [17] 12 Co. Rep. 112.
VI. I come to the sixth consideration, who may be said a person
committing larciny, but of this I have at large treated before cap. 3,
S,'c. and therefore shall say but little here.
An infant under the age of discretion regularly cannot be guilty of
larciny, viz. under fourteen years, unless it appears by circumstances,
that he hath a discretion more than the law presumes.
A madman, non compos, or lunatic in the times of his
lunacy cannot commit larciny, but ought to be found not [ 516 ]]
guilty upon due evidence thereof.
A feme covert alone may be guilty of larciny, if done without
coercion of her husband. 27 ^ssiz. 40.[1S]
But it hath generally now obtaind, tliat she cannot be guilty of
larciny jointly with her husband, because presumed to be done by
coercion of her husband. Vide Dalt. cap, 104.(6) Stamf. P. C.
fol. 26. a. Sf librus ibi.
(s) This case is mentioned by Dalton in the place cited by our author, which in New
Edit, is cap. 156. p. 502.
(a) 12 Co. 112. V (fc) New Edit. cap. 157. p. 503.
21 ; Mellish's case, Russ. ^ Ry. 80; Thornley's case, Mood. 343; Hawton's case, 7 Car,
6f Pay. 281; Snowley's case, 4 C. Sf P. 3:t0 ; Sullen's case, Mood, 129; Walsh's case,
Russ. Sf i?y. 215; S. C. 4 Taunt. 258. 284; Hoggen's case. Id. 145; Nettleton's case.
Mood, 259 ; Hobson's case, Russ. ^- Ry. 56; Tnytor's case, Id. 63; HaWs case, Id. 463;
Jones's case, 7 Car. ^ Pay. 834; Rep. of the Penal. Code. Mass. 22.
[-17] As to stealing a human body, see 1 Cri7n. Law Com. Rep. 20. 2 East's P. C.
632. 2 Russ. on Crimes, 163. Rose, on dim. Ev. 517.
As to property in grave clothes, see 3 Inst. 110. Haynes' case, 12 Rep. 113.
Blackstone remarks {vol. 4. ;). 235.) that by the law of the Franks a person who dusf a
corpse up in order to strip it, was to be banislied from society, and no one suffered to
relieve his wants till the relutives of the deceased consented to his re-admission: and he
cites Montfsqiiieri, Sp. L. b. 30. c. 19.
[18] See ante, p. 44, notes; and see further WiJford's case, Russ. Sf Ry. 517. French's
case. Id. 491. Clarke's case. Mood. R 376, note. Willises case, id. 375. Solfries' case,
id. 243. Harrison's case, 2 East's P. C. 559. Turner's case, 1 Leach, C. C. 536. The
People V. Schuyler, 6 Cowen, R; 572. •
516 HISTORIA PLACITORUM CORONA.
But this I take to be only a presumption till the contrary appear,
for I have always thought, that if upon the evidence it can clearly
appear, that the wife was not drawn to it by her husband, but that
she was the principal actor and inciter of it, she is guilty as well
as the husband, but stabilur prsesumptio, donee probetiir in contra-
rmm, neither is the book of 2 E. 3. Curone 160, to the contrary, but
in the book of 27 ^ssiz. 40. where she was indicted alone, inquiry
was made, whether it were by coercion of the husband.
And therefore, if .^. and B. his wife be indicted by these names of
larciny, the indictment is not void, for the husband may be con-
victed, tho the wife be acquitted upon the presumption of her hus-
band's coercion.
Again, the husband may be acquitted, and the wife found to have
done the felony alone, for every indictment is several in law ; or
again, Xho prima facie the wife cannot be guilty of larciny, no nor of
burglary, where the husband is party in the fact, (tho she may be
guilty of murder or manslaughter jointly with her husband) and
therefore prima facie the wife in such case must be acquitted, yet
for my part I think the circumstances may be such, that the wife
may be as well guilty in larciny or burglary, as her husband.
If a servant commit felony by the coercion of his nmster, yet it
doth not excuse the servant, tho it excuse the wife, as is before said,
for the wife is inseperably sub potestate viri, but it is not so with a
servant, for as he is not bound to obey his master's unlawful com-
mands, so he may recover damages for any wrong done him by his
master. Bali. cap. 104, p. 269.{c)ll9]
See Black. Com. Lib. iv. cap. 17. p. 229 to 244. and Foster 73, 123, 124, 366. and 1 Hawk.
P. C. Index tit. Larciny.
(c) New Edit. p. 504.
[19] Simple larceny must be in the first place an unlawful taking, which implies that
the goods must pass from the possession of the right owner, and without his consent,
and therefore where there is no change of possession, or a change of it by consent, or a
cliange from the possession of a person witiiout title to that of the right owner,* tliere can
in any of tliese cases be no larceny. And as tlie taking must be without consent of the
owner, so in general no delivery of goods from the owner to the offender upon trust can
ground a larceny. As if A. lends B. a horse, and lie rides away with him. Yet if the
delivery be obtained from the owner by a person having animus furandi at the time, and
who afterwards unlawfully appropriates tlie goods in pursuance of that intent, it is lar-
ceny; as if in the case above supposed, B. solicited tliC loan of the horse with intent to
steal him. {Major Semple^s case, 2 Leach, 469, 470.) But in such cases, bare non-de-
livery shall not of course be intended to arise from a felonious design; since that may
happen from a variety of other accidents. So a person who has received goods by delivery
from the owner, will nevertheless be found guilty of larceny by appropriating them, if
they were delivered under such circumstances as not to divest the owner of the legal
possession ; as when a servant embezzles his master's plate, {Christian''s Blacksione, vol.
iv. page 230, note ;) or the guest at an inn or tavern makes away with the articles of
which he has temporary use. Hawk, P. C. h. 1. c. 33. s. 6; 4 Bl. Com. 331.
Again, there must not only be a taking, hut a carrying away; cepit et asporiavit was
the old law Latin. A bare removal from the place in which he found the goods, though
the thief does not quite make off with them, is a sufficient asportation, or carrying away.
* But if a person has temporary title against the permanent owner, the latter may be
guilty of larceny in taking them. R. v. Wilkinson, R. Sf R. C. C. 470; 4 Bl. Com. 231.
HISTORIA PLACITORUM CORONiE. 516'
As if a man be leading another's horse out of a close and be apprehended in the fact, or
if a guest stealing- goods out of an inn, has removed them from his chamber down stairs,
these have been adjudged sufficient carryings away to constitute a larceny. Qi Inst. 108,
109;) or if a thief intending to steal plate, takes it out of a chest in which it was, and
lays it down upon the floor, but is surprised before he can make his escape with it, this
is larceny.
Farther, this taking and carrying away must be of personal iroof/s. Lands, tenement?,
hereditaments, either corporeal or incorporeal, either freehold or less than freehold, can.
not in their nature be taken and carried away. And of things likewise that adhere to
the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be
committed by the rules of the common law; but the severance of them was merely a
trespass, which depended on a subtlety in the legal notions of our ancestors. These
things were parcel of the real estate, and therefore, while they continued so, could not by
any possibility be the subject of theft, being absolutely fixed and immovable; and if they
were severed by violence, so as to be changed into movables, and at the same time by
one and the same continued act, carried off by the person who severed them, they could
never be said to be taken from the proprieior in this their newly-acquired state of mobi-
lity, which is essential to the nature of larceny, being never as such in the actual or
constructive possession of any one but him who committed the trespass. He could not
in strictness be said to have taken what at that time were the personal goods of another,
since the very act of taking was what turned them into personal goods. But if the thief
severs them at one time, whereby the trespass is completed, and they are converted into
personal cliattels in the constructive possession of him on whose soil they are left or laid,
and comes again at another time when they are so turned into personalty, and takes
them away, it is larceny at th» common law ; and so it is if the owner or any one else
has severed them. So, upon nearly the same principle, the stealing of writings relating
to real estate is, at common law, no felony, but a trespass, {Rex v, Westbeer, Stra. 1137,)
because they concern the land, or according to our technical language, savour of the
realty, and are considered as part of it by the law; so that they descend to the heir
together with the land which they concern. Bonds, bills, and notes which concern mere
thoses in action, wore also at the common law, held not to be such goods whereof larceny
might be committed, being of no intrinsic value, (8 Rep. 33. b.) and not importing any
property in possession of the person from whom they were taken. By the common law,
also, larceny could not be committed of treasure trove, or wreck, till seized by the king,
or him who hath the franchise, for till such seizure, no one has a determinate property
therein; nor could it be committed, at the common law, of such animals in which there
is no property, either absolute or qualified, as of beasts that are fercE naturcB, and unre-
claimed, such as deer. Hawk. P. C. b. 1. c. 33. s. 25; ante, p. 11.
It is also said {Dalt. Just. c. 156,) that if swans be lawfully marked, it is felony at
common law to steal them, though at large in a public river; and that it is likewise felo-
ny to steal them, though unmarked, if in any private river or pond; otherwise it is only
a trespass. But of all valuable domesticated animals, as horses and other beasts of
draught, and of ail animals, domita natures, which serve for food, as neat or other cattle,
swine, poultry, and the like, and of their fruit or produce taken from them while living,
as milk or wool, (Dalt. 21 ; Crompt. 36 ; Hawk. P. C. b. 1. c. 33. s. 28. The King v. Mar-
tin, by all the judges, P. 17. Geo. III.) larceny may be committed at common law, and
also of the flesh of such as are either dornita or fer<B natura, when killed; (ante p. 511.)
while on the other hand, as to those animals which do not serve for food, and which,
therefore, the la*?!? holds to have no intrinsic value, as dogs of all sorts, and other creatures
kept for whim and pleasure, though a man may have a bare property therein, and main-
tain a civil action for the loss of them, {ante p. 512.) yet they are not of such estimation
as that the crime of stealing them amounts to larceny.
Lastly, the taking and carrying awjy, must be with intevt to deprive the right owner,
or as it is frequently expressed, animo furandi. (The civil law expresses this by the
words "lucri causa." 4 Inst. 1.1.) This requisite, besides excusing those who labor under
incapacities of mind or will, indemnifies also mere trespassers, and other petty oflenders.
As if a servant takes his master's horse without his knowledge, and brings him home
again — if a neighbor takes another's plow that is left in the field, and uses it upon his
own land, and then returns it — if under colour of owner of rent where none is due, I dis.
train another's cattle or seize them — all these are trespasses, but no felonies, {ante,
p. 509.) The ordinary discovery of a felonious intent is where the party doth it clan-
destinely, or being charged with the fact, denies it. But this is by no means the only
criterion of criminality, for in cases that may amount to larceny, the variety of cireum-
516^ HISTORIA PLACITORUM CORON.^.
stances is so great, and the complication thereof so mingled, that it is impossible to
recount all those which may evidence a felonious intent or anvnum fnrandi ; wherefore
they must be left to the due and attentive consideration of the court and jury.
Hiving tiius considered the general nature of simple larceny, at common law, we now
arrive at its punishment. Thelt, by the Jewish law, was only punished with a pecuniary
fine and satisfaction to tiie party injured, (Exod. xxii.) And in the civil law tdl some
very late constitutions, we never find tlie punishment capital. The laws of Draco, at
Athens, punished it with death; but his laws were said to be written in blood; and Solon
afterwards ciiangcd tiie penalty to a pecuniary mulct. And so the Attic laws, in general,
continued, {I'etit. L. L. Attic. I. 7. tit. 5.) except that once, in a time of dearth, it was
made capital to break into a garden and steal figs; but this law, and the informers grew
BO odious, that from'them' all malicious informers were styled sycophants, a name which
we have much perverted from its original meaning. In England, the ancient Saxon laws
nominally punished theft with death, if above the value of twelve pence; but the criminal
was permitted to redeem his life by a. pecuniary ransom, as amongst their ancestors the
Germans, by a stated number of cattle. Tac. de Mor. Germ. c. 12. But in the niiith
year of Henry 1. this power of redemption was taken away, and all persons 'guilty of lar-
ceny, above the value of twelve pence,* were directed to be hung. So that stealing to
above this value (which was called grand larceny,) became a felony absolutely capital,
and so continued to our o.wn lime,t while petit larceny, that is theft to inferior amount,
(though also described as felony,) was punislied with imprisonment or whipping only.t
However, by the law relating to benefit of clergy, (see c.'AA.p. 517, as latterly modified;)
persons who committed simple larceny only, though to the amount of more than twelve
pence, or indeed to any amount whatever, were, in fact, excused the pains of death, pro-
vided it were the first offence, and provided tlie benefiDtof clergy had not been taken
away from the particular species of thefl, by some express statute as was very frequently
the case, (4 Black. Com. 237.) and when the capital punishment was thus taken away,
were formerly liable to be burnt in the hand, or whipped, or in more modern times, to be
whipped, or transported for seven years, which latter punishment might also, latterly, be
inflicted in lieu of the common law penalties, on persons convicted of petit larceny, (4
Geo. I. c. 11. 19 Geo. III. c. 74. 4 Black. Cam. 237.) AnA such was the state of the
law on this subject, as late as the year 1827, when by statute 7 t^ 8 Geo. IV. c. 29. ss. 3,
4. it was provided that every person convicted of simple larceny, of any amount, (all
distinctions between grand and petit larceny, being by the same statute abolished,) shall
be liable to be transported for seven years, or imprisoned for not more than two years:
such imprisonment to be with hard labor and solitary confinement, and (if the offender
be a male) to be accompanied with whipping at the discretion of the court. See chap. 44-.
note, p. 517. In certain cases, however, where the larceny relates to a subject for which
the policy of the law provides with more anxiety, the punishment is more severe. For by
74-8 Geo. IV. c. 29. s. 16. (amended as to punishment by 7 Will. IV. ^ I Vict. c. 90.) if
any person shall steal to the value often shillings, any goods or articles of silk, woollen,
linen, or cotton, or of any one or more of those materials, mixed with each other, or mixed
with any other material, whilst placed, laid or exposed during any stage, process, or pro-
gress of manufacture, in any building, field, or other place, he shall be transported for a
term not exceeding fifteen years, or less than ten years, or imprisoned for a term not ex-
ceeding three years, with hard labor and solitary confinement, if the court think-fit, during
* This sum, (says Blackstone, vol, iv. p. 237.) was the standard in the time of king
Athelsta n, a.nd he observes that afterwards, in the reign of king Henry 1. one shilling
was the stated value at the Exchequer, of a pasture-fed ox, {Dial, de Scucc. I. I. s. 7,)
and that if we should suppose this shilling to mean that solidus legalis mentioned by
Lyndeuode, (Prov. 1. 3. c. 13,) or the 72d_part of a pound of gold, it would be equal to
13s. I4d. of the present standard.
t The progressive reduction in the value of money, while death continued to be the
sentence for theft, to the same amount as before, justified the complaint of Sir H. Spel-
vian, (Gloss. 350,) that while every thing else living became dearer, the life of man liad
continually grown cheaper.
t 3 Inst. 218. Hawk. b. I. c. 33. s. 30. 4 Block. Com. 237. These denominations of
grand and petit larceny, are now at an end, by 7 tSf 8 Geo. IV. c. 29. s. 2. which gives to
thefts to the amount of twelve pence, and under, the same effect as to thefts of greater
amount. See a passage from Knighfs Hist, of England, B, I. c. 7. in a note at the end
of this volume.
HISTORIA PLACITORUM CORONA. 516*^
such imprisonment.* And by sect. 25, (amended as to punishment, by 7 Will.lV. Sfl Vict,
c. 90.) if any person shall steal any horse, mare, gelding-, colt, or filly; or any bull, cow, ox,
heifer, or calf; or any ram, ewe, sheep, or lamb; or shall wilfully kill any of such cattle,
with intent to steal the carcase or skin, or any part of the cattle so killed, he shall be
guilty, of felony, and be liable to the same punishments as last above particularized. t
The additional severity, in these instances, is owing to the difficulty tliere would
othervvi.se be in preserving goods so easily carried off. Upon which principle the Roman
law punished more severely than other thieves, the abifrii or stealers of cattle, {Ff. 47.
t, 14.) and the balnearii or such as stole the clothes, of persons who were washing in the
public baths, {lb. t. 17.) both which constitutions seem to be borrowed from the laws of
Athens, (Pott. Antiq. b. 1. c. 26.) And so, too, the ancient Goths punished with unrelent-
ing severity thefts of cattle, or corn that was reaped and left on the field. Such kind of
projierty which no human industry can sufficiently guard, being esteemed under the pe-
culiar custody of heaven. {Sliern. de Jure Goth. 1. 3. c. 5.)
The offijiice which we have been hitherto considering, is simple larceny as it existed
at comtnon law; but in connexion with this offence, and proper for consideration under
the same head, is the crime of simple stealing, {or theft) of things not the subject of lar-
ceny at. common law. For in progress of time it was found necessary to extend the
protection of the penal laws to many of those subjects of which the ancient law of
larceny took no account; and acts of parliament were accordingly passed from time
to time by which punishments w'ere imposed for thefts committed in respect of
various kinds of property so circumstanced, and though these statutes have been since
repealed, the same general object has been pursued in the 7 iSf 8 Geo. IV. c. 29, passed
" For consolidating and amending the laws in England relative to larceny, and other
offences connected therew-ith." By this act- provisions are made against stealing "valu-
able securities," such as bonds, bills, and the like, (7^8 Geo. IV. c. 29. s. 5,) and many
other subjects of property, of which the enumeration will be found in a note below,t so
that it may be laid down in general terms, that stealing has now become an offence liable
to punishment or penalty in regard to all movables whatever. We may also remark
with respect to the kinds of stealing thus created by statute in supplement to the ancient
law of larceny, that all the common law doctrines relative to larceny which we have
already had occasion to notice, are in general j^pplicable to thefts of this description also,
{Rex V. Si. John, T C. Sf P. 324.) though they are "not technically denominated larcenies,
(see Rex v. Gooch, S C Sf P. 293;) and that their punishment is in many cases identical.
In many instances, however, they do not amount like larceny at common law to a felony,
but to a misdemeanor only, and are visited with some lighter degree of punishment,
and there are several kinds of them not assignable to the class either of felony or misde-
meanor, but restrained b}' fixed pecuniary penalties only, recoverable in a summary way
by information before a justice of the peace.
We have seen that larceny may not only be simple, but combined with circumstances
of aggravation, which is described in our books as mixed, compound or complicated
larceny, (4 Bla. Com. 239 ; Hawk. P. C. B. 1. c.c. 33, 34 ;) and this is not only like simple
larceny felonious, but is felony of a more penal character. We will therefore now consider,
Larceny from a dwelling-house, shop, warehouse, or counting-house. — Larceny from the
* As to the former state of the law, with respect to stealing woollen cloth, linens, fus-
tians, calicoes, or cotton goods from the place of manufacture, see 22 Car. 2. c. 5. 15 Geo,
II. c. 27. 18 Geo. II. c. 27-51. Geo. III. c. 41. 4 Geo. IV. c. 53.
t The punishment of horse and cattle stealing by 7 4' '^ C'eo. IV. c. 29. s. 25. was
death, as it had previously been, (without benefit of clergy,) by the statutes (now repealed
bv 7 <^ 8 Geo. IV. c. 27.) of I Edw. VI. c. 12. 2 «^ 3 Edw. VI. c. 33. 31 Elizabeth, c. 12.
14 Geo. II. c. 6. 15 Geo. II. c. 34. Afterwards it was reduced by 2 & 3 Will. IV. c. 62.
to transportation for life, to which, by 3 ^ 4 Will. IV. c. 44. previous imprisonment with
■^r withotit hard labour, might be superadded.
' X See 7 c^r 8 Geo. IV. c. 29. s. 21. as to stealing records and judicial documents; s. 22.
stealing or destroying wills; s. 23. stealing documents of titles; s. 26. deer; s 30. hares
or conies; s. 31. beasts or birds; s. 33. pigeons; s. 34. fish; s. 36. oysters; s. 37. ores la
mines, (fee; s.s. 38, 39. trees or shrubs, &c. ; s.40. fences, stiles, gates, &c.; s. 42. plants,
fruits, &c.; s. 44. fixtures in houses, squares, or street fences ; 7 Will. IV. Sf 1 Vict. c. 87.
s. 8. as to plundering wrecks; 8 <^ 9 Vict. c. 47. as to stealing dogs. A variety of ante-
cedent statutes that had been passed with the same object of supplying the defects of the
ancient law in this particular, and that are noticed by Blackslone, vol, i\. p. 233, &c. are
now repealed by 7^-8 Geo, IV. c. 27.
516'^ HISTORIA PLACITORUM CORONiE.
house, though it seems to have a higher degree of guilt than simple larceny, yet was not
at all distinguished from the other at common law, {Hawk. P. C. B. 1 c. 36.) unless where
it were accompanied with the circumstances of breaking the house by night, and then it
fell under anotlier description, viz. that of burglary. But afterwards, by several acts of
parliament, the history of vvliich is ingeniously deduced by a learned modern writer,
\Barr. on Statutes, 375, Sfc.) who has shown tiiem to liave gradually arisen from our im-
provements in trade and opulence, the benefit of clergy was taken from larcenies com-
mitted in a house in almost every instance, as also from those committed in shops, ware-
houses, coacli-houses or stables, so that the capital sentence to which they were subject as
larcenies took effect. These acts, however, are all now repealed, and the present law on
the subject is governed by 7 Sf 8 Geo. IV. c. 29. and 7 Will. IV. 6f 1 Vict. c. 86. By
the first of these acts amended as to punishment by 7 Will. IV. Sf 1 Vict. c. 90,* if any
person shall break and enter any dwelling-house and steal therein any chattel, money or
valuable security to any value whatsoever, or shall break and enter any building and
steal therein any chattel, money or valuable security, such building being within the
curtilage of a dwelling-house and occupied therewith, but not being part thereof accord,
ing to the provisions of the first-mentioned act, (7 S( 8 Geo. IV. c. 29. s. 13.) or shall
break or enter any shop,t warehouse or counting-house, and steal therein any chattel,
money, or valuable security, the offender in any of such cases shall be transported for a
term not exceeding fifteen years nor less than ten, or be imprisoned for a term not ex-
ceeding three years, to which imprisonment, hard labour, and solitary confinement may
be superadded if the court think fit. And it is further enacted by 7 & 8 Geo. IV, c. 29.
s. 12. (amended as to punishment by 7 Will. IV. c^- 1 Vict. c. 90.) and 7 Will. IV. Sf
1 Vict. c. 86. s. 5. that whoever shall steal in any dwelling-house any chattel, money or
valuable security, to the value in the whole of five pounds or more, or shall steal any
property in any dwelling-house, and shall by any menace or threat put any one being
therein in bodily fear, shall be guilty of felony, and liable to the same punishments as
last above particularized.!
Larceny from a church, or, (as it is sometimes called) sacrilege. By stat. 23'. Hen,
VIII. c. 1. and I Edw. VI. c. 12. it was felony without benefit of clergy to commit
larceny above the value of tvvelvepencc in a church or chapel, (post, p. 518.) But these
statutes are now repealed ; and by 7 Sf 8 Geo. IV. c. 29. s. 10. (amended as to punish-
ment by 5 c^ 6 Will. IV. c. 81. and 6 i^ 7 Will. IV. c. 4.) if any person shall break and
enter any church or chapel,§ and shall steal therein any chattel, or having stolen ahy
chattel in any church or chapel, shall break out of the same, he shall be transported for
life, or not less than seven years, or imprisoned for not more than three years, with hard
labour and solitary confinement at the discretion of the court or judge during the period
of imprisonment. ,
Larceny from the person, which is either by privately stealing, or by open and violent
assault, usually called robbery. The offence of privately stealing from a man's person, as
by picking his pocket, or the like, privily, without his knowledge, was debarred of the
benefit of the clergy so early as by the statute 8 Eliz. c. 4.|| a severity which seems to
be owing to the ease with which offences are committed, the difficulty of guarding
against them, and the boldness with which they were practised (even in the queen's court
and presence) at the time when this statute was made, besides that this was an infringe-
* It had been previously amended as to punishment by 2 ^ 3 Will. IV. c. 62. and
3 S(4 Will.lV.c.U.
t To fall under this description the place must be a shop for the sale of goods, and not
a mere workshop. Reg. v. Saunders, 9 C. Sf P. 79.
t The former state of the law as to larceny from a house, shop, &c. was very compli-
Gated. It depended on statutes 5 ^ Q Edw. VI. c. 9. 3'.) Eliz. c. 15. 3 4" 4 W. Sf M. c. 9.
10 <^ 11 Will. III. c. 23; all which are now repealed by 7 (^ 8 Geo. IV. c. 27. By these
statutes the amount of the property stolen as being above twelve pence, or of the value
of five shillings or forty shillings constituted in the several cases respectiveljr a material
ingredient in the offence. • - .
(j As to what buildings come under this provision, vide Rex v. Wheeler, 3 Gar. ^ P.
585. Rex v. Richardson, 6 Car. Sf P. 335. Rex v. Nixon, 7 Car. & P. 442. Reg. v.
Evans, 1 Car. Sf M. 298.
II This, it will be observed, applies only to the case where the thing stolen was of the
value of more than twelve pence; for if it was below that value, so as to reduce the
offence to petit larceny, there was no need of the benefit of clergy, the sentence not being
capital. Hawk. P. C. b. 1. c. 35. s. 4.
HISTORIA PLACITORUM CORONA. 516'
ment of property in the manual occupation or corporal possession of the owner, which
was an offence even in a state of nature: and therefore the saccularii, or cut-purses,
were more severely punished than common thieves by the Roman and Athenian laws.
(Ff. 47. 11. 7. Pott. Antiq. 1. 1. c. 26.) But this statute is now repealed by 7 4- 8 Geo.
IV. c. 27. and new provisions, of which we shall presently have occasion to speak more
at large, are made by 7 Will. IV. «Sc 1 Vict. c. 87.
Open and violent larceny from the person or robbery, the rapine of the civilians, is
ihe unlawful and forcible taking from the person of another of goods or money to any
value by violence or putting iiim in fear. Hawk. P. C. b. 1, c. 34, s. 2. 1. There
must be an unlawful taking, otherwise it is no robbery.* On the other hand, if the
thief having once taken a purse returns it, still it is a robbery. Rez v. Reot, 1 Leach,
C. C. 228. 2. It is immaterial of what value the thing taken is, a penny as well as a
pound, thus forcibly extorted makes a robbery. Hawk. P. C. b.l. c. 34, s. 16. 3. Lastly,
the taking must be by force or a previous putting in fear, which makes the violation
of the person more atrocious tlian privately stealing. For according to tiie maxim of
the civil law, (Ff. 47. 2-4, xxii.) qui vi rapuil fur improbior esse videtur. Tiiis pre-
vious violence, or putting in fear, is the criterion that distinguishes robbery from other
larcenies. For if one privately steals a chattel from the person of another, and aftel*.
wards keeps it by putting him in fear, this is no robbery, for the fear is subsequent:
{post p. 534.) Not that it is indeed necessary, though usual to lay in the indictment
that the robbery was committed hy putting into fear; it is sufficient if laid to be done
by violence. {Trin. Term, 3 Anne, by all the judges.) And when it is laid to be done
by putting into fear, tiiis does not imply any great degree of terror or affright in the
party robbed; it is enough that so much force or threatening by word or gesture be
used as might create an apprehension of danger, or induce a man to part with his pro-
perty without or against his consent. (Fosi. 128.) Thus if a man be knocked down
without previous warning,. and stripped of his property while senseless, though strictly
he cannot be said to he. put into fear, yet this is undoubtedly a robbery. Or if a person
with a sword drawn begs an alms, and I give it to him through-mistrust and appre-
hension of violence, this also falls within the definition of the same crime. Hawk. P. C.
b. 1, c. 34, s. 8.) So if under a pretence of sale a man forcibly extorts money from
another, neither shall this subterfuge avail him. But it is doubtful whether the forcing
a higgler or other chapman to sell his wares, and giving him the full value of them,
amounts to so heinous a crime as robbery. {^Ibid. s. 14.) This species of larceny was
debarred of the benefit of clergy by statute 23 Hen. VIII. c. 1, and other subsequent
statutes, not indeed in general, but only when committed in a dwelling-house or in or
near the king's highway. A robbery, therefore, in a distant field was not punished
with death, [post p. 535,) but was open to the benefit of clergy till the statute 3 .^ 4
W. ^ M. c. 9, which took away clergy from both principals and accessaries before the
fact in robbery wheresoever committed. But all these statutes, as well as the 8 Eliz. c. 4,
with respect to privately stealing from the persons, are now repealed by 7 ^ 8 Geo. IV.
c. 27. And by 7 Will. IV. S^ 1 Vict. c. 87, provisions are now made against both
species of offences, with distinctions as regards robbery, suitable to the aggravations
with which that crime may have been committed. This statute enacts that whosoever
shall rob. any person, and at the time or immediately before or immediatehj after such rob-
bery, shall stab, cut, or wound any person, shall suffer death, and that whoever being
armed with any offensive weapon or instrument shall rob or assault with intent to
rob any person, or shall together with one or 7nore person or persons rob or assault
with iment to rob any person, or shall rob any person, and at the time of or imme-
dialdy before' or immediately after such robbery shall beat, strike, or use any other per-
sonal violence to any person, shall be guilty of felony and be transported for life, or not
less than fifteen years, or imprisoned! for not more than three years; that whoever shall
accuse or threaten of such abominable crime as in the act specified, or of any attempt or
solicitation tlifreto, and extort property by such intimidation, shall incur the like penalty;
that whoever shall rob any person, or steal any property from the person of another,
» A mere attempt to rob was held to be a felony so late as Henry IV's. time: post
p. 532; but afterwards it was taken to be only a misdemeanor until 7 Geo. II. c. 21,
which made it transportable felony. This statute was repealed by 4 Geo. IV. c. 54, which
is itself repealed by 7 ^ 8 Geo. IV. c.27. And as to the present law, vide 7 Will. IV. tV
1 Vict. c. 87. • i- ' J
t In any case in which imprisonment may be awarded under this statute, hard
labour and solitary confinement may be added. 7 Will. IV. Sf 1 Vict.c. 87, s. 10.
516^ HISTORIA PLACITORUM CORONA.
shall be transported for a term not exceeding fifteen years nor less than ten, or be im-
prisoned for not more tiian three: that whoever shall assault any person with intent to
rob,* siiall be guilty of felony, and be imprisoned for not more than three years; and
•that whoever with menaces or force shall demand any property of any person with intent
to steal the same, shall incur the like penalty. In connexion also with the offence com-
prised in this statute of extorting money by threat of accusation, we may notice the
provision of the prior act of 7 t.y 8 Geo. IV. c. 29, s. 8,t by which it is enacted, that if
any person shall knowingly send or deliver any letter or writing, demanding of any
person with menaces, and without reasonable or probable cause any chattel, money, or
valuable security,! or shall accuse or threaten to accui^e, or shall knowingly send or de-
liver any letter or writing accusing or threatening to accuse any person of a crime
punishable by law with death, transportation, or pillory, or of any assault with, intent
to commit rape, or of attempt to commit rape, or of any such infamous crime as in
the act mentioned with intent to extort any ciiattel, money, or valuable security, such
offender sliall be guilty of felony, and be transported for life or not less than seven
years, or imprisoned (with or. without hard labour and solitary confinement) for not
mor-e than four years ; and, if a male, be once, twice, or thrice whipped, if the court
think fit, in addition to the imprisonment. - ''
Larceny by clerks, servants, or agents. — Special provision against larcenies by servants
was made by the statutes 33 Hen. VI. c. 1. and 21. Hen. VIII. c. 7. See ante, p. 51.j.
note 16. both which are now repealed by 7^8 Geo. IV, c. 27. But hy 7 Sf 8 Geo. IV.
c. 29. s, 46, it is provided that if any clcrk§ or servanlH shall steal any chattel, money, or
valuable security, belonging to, or in the possession or power of his master, he shall be
transported for a term not exceeding fourteen years, nor less than seven years, or im-
prisoned (with or without hard labour and solitary confinement) for a term not exceeding
three years, and if a male, once, twice or thrice whipped, if the court think fit, in addi-
tion to the imprisonment. In addition to which tliere .are separate provisions against
embezzlement, a crime distinguished from larceny, properly so called, as being commit-
ted in respect of property which is not at the time in the actual or legal possession of the
owner. A.s to this, it is enacted by the same statute, sect. 47, that if any clerk or ser-
vant, or any person employed for the purpose, or in the capacity of a clerk or servant,
shall by virtue of such employment, receive or take into his possession any chattel, money,
or valuable security for, or in the name, or on the account of his master,ir and shall frau-
dulently embezzle the same, or any part thereof, every such offender shall be deemed to
have feloniously stolen the same, and shall suffer the same punishment as last above par-
ticularized: and by sect. 49, that if any money or security for the payment of money,
shall be intrusted to any banker, merchant, broker, attorney, or other agent, with any
direction in writing, to apply such money, or any part thereof, or the proceeds, or any
part of the proceeds of such security, for any purpose specified in such direction, and h^,.
shall, in violation of good faith, and contrary to the purpose so specified, in any wise
convert to his own use or benefit such money, security or proceeds, or any part thereof,**
every such offender shall be guilty of a misdemeanor, and be transported for a term not
exceeding fourteen years, or less than seven years, or suffer such other punishment, by
fine or imprisonment, or both, as the court shall award, and that if any chattel or valu-
able security, or any power of attorney for the sale or transfer of any share or interest
in any public stock or fund of this country, or any foreign state, or in any fund of any
body corporate, company or society shall be intrusted to any banker, merchant, broker,
attorney, or other agent, for safe custody, or for any special purpose, without any autho-,
rity to sell, negotiate, transfer or pledge; and he shall, in violation of good faith, and
contrary to the object of the trust, sell, negotiate, transfer, pledge, or iii any manner
convert to his own use or benefit such chattel or security, or the proceeds of the same, op
any part thereof, or the share or interest in the stock or fund, to which such power of
"* As to this provision, vide Reg. v. Huxley, 1 Car. Sj M. 596. *
+ Et vide as to letters threatening to kill, burn, &c. 4 Geo. IV. c. 54, si. 3.
I As to what is a threatening letter under this statute, vide Rex v. Pickford, 4 Car. Sf
P. 227.
§ As to larceny by a clerk in a public office, vide Rex v. Lovell, 2 M. S^ Rob. 236.
II As to who is a setvant, within the meaning of this section, vide Reg, v. Haydon,
ICar.Sf P. 445. ^
IT Embezzlement of money by a'servant not authorized to receive it, is not within this
section. Rex v. Thorley, I M. C. C. R. 343. '
** As to this provision, see Rex v. White, 4 Car, Sf Pay. 46.
HISTORIA PLACITORUM CORONA. 516^
attorney shall relate, or any part thereof, every such offender shall incur the same penal-
ties as are imposed in the case last before mentioned.* It is provided, sect. 50, however,
that this shall not affect any trustee, in or under any instrument whatever, or any mort-
gage of any property, real or personal, in respect of any act done by such trustee or
mortgagee, in relation to the property comprised in, or affected by any such trust or
mortgage, nor shall restrain any banker, merchant, broker, attorney, or otiier agent, from
receiving any money which shall be or become actually due and payable upon any valu-
able security, according to the effect and tenor thereof, in such manner as he might
otherwise have done, nor from selling, transferring, or otherwise disposing of any secu-
rities or effects in his possession, upon which he shall have any lien, claim, or demand,
entitling him by law so to do, unless such sale, transfer, or other disposal shall extend to a
greater number or part of such securities or effects than shall be requisite for satisfying
such lien, claim or demand. By the same statute, sect. 51, it is enacted, that if any factor
or agent, intrusted for the purpose of sale, with any goods or merchandize, or intrusted
with any bill of lading, warehouse keeper's or wharfinger's certificate, or warrant or
order, for delivery of goods or merchandize, or any of the said documents as a security
for any money or any negotiable instrument, borrowed or received by such factor or
agent at, or before the time of making such deposit or pledge, or intended to be there-
after borrowed or received, he shall incur the same penalties as in the two former cases,
but that no such factor or agent shall be liable to prosecution for depositing or pledging
any such goods or merchandize, or any of the aforesaid documents, in case the same
shall not be made a security for, or subject to, the payment of any greater sum of money
than tiie amount, which at the tinrc of such deposit or pledge, was justly due and owing
to such factor or agent, from liis principal, together with the amount of any bill or bills
of exchange, drawn by, or on account of, such principal and acceptor^ by such factor or
agent.
Larcenies in relation to the post-office. — By 7 Will. IV. ^- 1 Vict, c. 36. s. 25, every
person employed under the post-office who shall, contrary to his duty, open or procure
or suffer to be opened, or wilfully detain or delay, or procure or suffer to be detained or
delayed a post letter shall be guilty of a misdemeanor, and punished by fine or imprison-
ment, or both, as to the court shall seem meet. By sect. 26, every person so employed
who shall steal, or for any purpose embezzle, secrete, or destroy a post letter, shall be
guilty of felony, punishable with transportation for seven years or imprisonment not ex-
ceeding three years ; and if any letter contain any chattel, money, or valuable security,
then with transportation for life.t By sec/. 32, every person so employed who shall steal,
or for any purpose embezzle, secrete, or destroy, or wilfully detain or delay in the course
of conveyance or delivery by post any printed votes or proceedings in parliament, or atiy
printed newspaper, or other printed paper sent by post without covers, or in covers open
at the sides, shall be guilty of a misdemeanor, punishable by fine or imprisonment, or
both, as to the court shall seem meet. These provisions relate only to offences by per--
sons employed in the department of the post-office ; but by sects. 27 and 28, er,ery person
who shall steal out of a post letter-bag or a post letter from a post letter-bag, or from a
post-office, or officer of the post, or a mail, or shall stop a mail with intent to rob or
search the same, shall be guilty of felony, and be transported for life.t By sect. 29, every
person who shall steal or unlawfully take away a post letter-bag, sent by a post-office
packet, or a letter out of any such bag, or shall unlawfully open any such bag, shall be
guilty of felony, and transported for a term not exceeding fourteen years. By sect. 30,
every receiver of a post letter, post letter-bag, chattel, money, or valuable security felo-
niously stolen under the post-office acts, knowing the same to have been so stolen, shall
be guilty of felony, and transported for life. By sect. 31, every person who shall fraudu-
lently retain, or wilfully secrete, or keep or detain, or being required by an officer of the
post-office, neglect or refuse to deliver up a post letter which ought to have been delivered
to any other person, or a post letter-bag, or post letter which shall have been sent and losti
shall be guilty of a misdemeanor, punishable with fine and imprisonment. And by sects.
41 Sf 42, it is provided generally, that every person convicted of an offence for which
transportation for life is awarded by that act, shall be liable to be transported either for
life or any time not less than seven years, or imprisoned for any time not exceedmg four
years; and that every person convicted of any offence punishable according to the post-
office acts by transportation -for any time not exceeding fourleen years, shall be liable to
* As to this sectiojy, vide Rex v. Nettleton, R. Sf M. 2,59.
+ As to this section, vide Reg. v. Raihbone, 1 Car. Sf M. 220 ; Reg, v. Mence, lb. 234.
t As to these provisions, vide Reg. v. Harley, 1 Car. Sf Kir. 89.
516^' HISTORIA PLACITORUM CORONA.
be transported for any time not exceeding^ fourteen years, or less than seven years — or
imprisoned for any time not exceeding three years; and that in all cases of imprison*
irient, the court may superadd hard labour and solitary imprisonment.*
Offences against tiie post-office in the United Stntes consist
First. Of robbing of the mail ; and Second, Of larceny or embezzlement from the
mail.
The act of March 3d, 1825,. provides that if any person shall rob any carrier of the
mail of the United States, or other person entrusted therewith, of such mail, or of part
thereof, such offender or offenders shall, on conviction, be imprisoned not less than five
years, nor exceeding ten years; and if convicted a second time of a like ofience, he or
they shall suffer death ; or if, in effecting such robbeiy of the mail the first time, the
offender shall wound the person having custody thereof, or put his life in jeopardy, by
the use of dangerous weapons, sucli offender or offenders shall suffer death. And if any
person shall attempt to rob the mail of the United Slates, by assaulting the person having
custody thereof, shooting at him, or his liorse or mule, or threatening him with dan-
gerous weapons, and the robbery is not effected, every such offender, on conviction there-
of, shall be punished by imprisonment, not less than two, nor exceeding ten years. And
if any person shall steal the mail, or shall steal, or take from, or out of, any mail, or
from or out of, any post-office, any letter or packet; or if any person shall take the mail,
or any letter or packet therefrom, or from any post-office, whether with or without the
consent of the person having custody thereof, and shall open, enibezzle, or destroy any
such mail letter, or packet, the same containing any article of value or evidence of any
debts due, demand, right or claim, or any release, receipt, acquittance, or discharge, or
any other article, paper, or thing mentioned, as described in the twenty-first section of
this act : or if any person shall, by fraud or deception, obtain from any person having .
custody th.ereof, any mail, letter, or packet, containing any article of value, or evidence
thereof, or either of the writings referred to, or next above mentioned, such offender or
offenders, on conviction thereof^ shall be imprisoned, not less than two, nor exceeding
ten years. ■
And if any person shall take any letter, or packet, not containing any article of value
or evidence thereof, out of a post office, or shall open any letter or packet which shall'
have been in a post office, or in custody of a mail carrier, before it shall have been de-
livered to the person to whom it is directed, with design to obstruct the correspondence,
to pry into another's business or secrets, or shall secrete, embezzle, or destroy, any such
mail, letter, or packet, such offender upon conviction, shall pay for every such offence, a
sum not exceeding five hundred dollars and be imprisoned not exceeding twelve months.
(Act of 3(Z March, 1825, sect. 22.) Peters's Statutes at Large, Vol. IV.p. 107-108.
If any person shall rip, cut, tear, burn, or otherwise injure, any valise, portmanteau, or
other bag, used, or designed to be used, by any person acting under the authority of the
postmaster general, or any person in whom his powers are vested, in a conveyance of
any mail, letter, packet, or newspaper, or pamphlet, or shall draw, or break any staple,
or loosen any part, lock, chain or strap, attached to, or belonging to any such valise,
portmanteau,, or bag with intent to rob, or steal any mail, letter, or packet, newspaper or
pamphlet, or to render either of the same insecure, every such offender, upon conviction,
shall for every such offence, pay a sum not less than one hundred dollars, nor exceeding
iive hundred dollars, or be imprisoned not less than one year, nor exceeding three years,
at the discretion of the court, before whom such conviction is had. Every person who,
from and after the passage of this act, shall procure, and advise, or assist, in the doing or
perpetration of any of the acts or crimes by this act forbidden, shall be subject to thg
same penalties and punishments as the persons are subject to who shall actually do or
perpetrate any of the said acts or crimes according to the provisions of this act. Ibid,
sect. 23.
If any person employed in any of the departments of the post office establishment, shall '
unlawfully detain, delay or open, any letter, packet, bag, or mail of letters, with which
he shall be entrusted, or which shall have come to his possession and which are intended to
be conveyed by post; or if any person shall secrete, embezzle or destroy, any letter or
packet entrusted to such persons as aforesaid, and which shall not contain any security
for, or assurance relating to money as hereinafter described, every such offender being
thereof duly convicted shall for every such offence be fiyed, not exceeding three hundred
dollars, or imprisoned not exceeding six months, or botii, according to the circumstances
* Stealing letters sent by the post was felony without benefit of clergy, by 7 Geo. III. c.
50. repealed by 7 Will. IV. ^ 1 Vict. c. 32.
HISTORIA PLACITORUM CORONA. 516'
and aggravations of the offence. And if any person, employed as aforesaid, shall secrete,
embezzle, or destroy, any letter packet, bag, or mail of letters with which he or they
shall be entrusted or wliich shall have come to his or her possession, and are intended to
be conveyed by post, containing any bank note, or bank post-bill, bill of exchange, war-
rant of treasury of ihe -IJnited Slates, note of assignment of stock in the funds, letters of
attorney for receiving annuities or dividends, or for selling stock in the funds, or for
receiving the interest thereof, or any letter of credit, or note for, or relating to, payments
of moneys, or any bond, or warrant, draft, bill, or promissory note, covenant, contract,
or agreement whatsoever, for, or relating to the payment of money, or the delivery of any
article of value, or the performance of any act, matter or thing, or any release, acquittance,
or discharge of or from any debt, covenant or demand, or any part thereof; or any copy of
any record of any judgment, or decree, in any court of law, or chancery, or any execution
which may have issued thereon, or any copy of any other record, or any other writing
of value, or any writing representing the same; or if any such person employed as
aforesaid, shall steal, or take, any of the same out of any letter, packet, or bag, or mail of
letters that shall come to his or her possession, such person, shall on conviction for any
such offence be imprisoned, not less tiian ten years, nor exceeding twenty one years. And
if any person who shall have taken charge of the mails of the United States, shall quit or
desert the same before such person delivers it into the post-office kept at the termination
of the rout, or some known mail carrier, or agent of the general post-office, authorized to
receive the same, every such person so offending shall forfeit, and pay a sum not exceed-
ing five hundred dollars for every such offence. And if any person concerned in carry-
ing the mail of the United States, shall collect, receive or carry any letter, packet, or shall
cause or procure the same to be done contrary to this act, every such offender shall for-
feit and pay for every such offence, a sum not exceeding fifty dollars. Act 3d March^
1825. sect. 21.
If any person shall buy, receive, or conceal, or aid in buying, receiving, or concealing
any article nientioned in the twenty-first section of this act, knowing the same to have
been stolen or embezzled from the mail of the United Slates, or out of any post-office, or
from any person having the custody of the said mail, or the letters sent, or to be sent
therein; or if any person shall be accessary after the fact, to any robbery of the carrier
of the mail of the United Slates, or other person entrusted therewith, of such mail, or of
part thereof^ every person so offending shall, on conviction thereof, pay a fine not exceed-
two thousand dollars, and be imprisoned and confined to hard labour for any time not
exceeding ten years. And such person or persons so offending may be tried and con-
victed without the principal offender being first tried, provided such principal offender
has fled from justice, or cannot be found to be put upon his trial. Sect, 45. Feters^ U. S.
Statutes at Large, ml. IV. p. lQl-8.
As to what constitutes a robbery of the mail and putting the life of the carrier or per-
son entrusted therewith in jeopardy, see U. S. v. Hare, U. S. C. C. Bait. May, 1818.
2 Wheeler's Cr. Cases, 12. U. S. v. Wood, Philadelphia, June, 1S18. U. S. v. Barnard,
Trenton, 181!}. U.S. v. Amenhiser, Bait. 1823, cited in Whartoii's Am. Crim. Laid,
574, note.
As to an indictment under the 23 section for advising to rob the mail, see U. S, v. Mills
7 Peters' S. C. Rep. 18.
As to what constitutes a dangerous weapon under the 22d section of the act, see U. S.
v. Wood, 3 W^ash. Rep. 440.
All persons present at the commission of the robbery consenting thereto, aiding, assist-
ing, or abetting therein, or in doing any act which is the constituent of the offence, are
principals. The word ' rob' in the 22d section is used in its common law sense. The
word 'jeopardy' means a well grounded apprehension of danger to life in case of refusal
to yield to threats or resistance. U. S. v. IVilson, 1 Baldw. R. 102.
It is unnecessary to give a particular description of a letter charged to have been
secreted and embezzled by a postmaster under the 21st section of the act of March 3d,
1825, nor to describe the bank notes particularly enclosed in the letters, U. S. v. Lan.
caster, 2 McLean, R. 431. It is enough to state the letter came to the hands of the post-
master in the words of the statute without showing where it was mailed, or on what
route it was conveyed. Id. To convict a person of stealing a letter, &c. who is employed
in the department, such employment must be distinctly alleged and proved. U. S.v. Nott,
1 McLean Rep. 499.
Offences under our post-office law are not felonies, but misdemeanors; and in such
cases less nicety in the form is required than in indictments for felonies in England.
U. S. v. Lancaster, cited supra. See also 17. S. v. Martin, 2 McLean's Rep. 256.
VOL. I. — 46
516'' HISTORIA PLACITORUM CORONiE.
Larcenies from ships or docks, wharfs or quays. — By 1^8 Geo. IV. c. 29. s. 17,
(amended as to punishment, by 7 Will. IV. c^ 1 Vict. c. 90.) any person stealing any
goods or merchandize in any vessel, barge, or boat, in any port of entry, or discharge, or
upon any navigable river or canal,* or in any creek belonging to, or communicating
with, any such port, river, or canal, or stealing any goods or merchandize from any
dock, wharf, or quay, adjacent to any such port, river, canal, or creek, shall be trans-
ported for not more than fifteen years, or less than two years, or imprisoned for not more
than three years, with hard labour, (if the court thinks fit,) and solitary confinenient.t
Having now considered the several kinds of larcenies, whether simple or with aggra-
vation, we must refer, under the same head, to that offence so closely connected with
larceny itself, of receiving stolen property, knowing the same to have been stolen. This •
offence was, at common law, a misdemeanor only, but was afterwards made felony by
several statutes, now repealed, (by 7 tSf 8 Geo. IV. c. 27.) and by 7 ^ 8 Geo. IV. c. 29,
s. 54, it is provided, that if any person shall knowingly receive any chattel, money, or
valuable security, or other property whatever, the stealing or taking wliereof shall amount
to felony, either by common law or by virtue of that act, every such receiver shall be
guilty of felony,t and may be indicted either as an accessary after the fact, or for a sub-
stantive felony, and however convicted, shall be liable, at the discretion of the court, to
be transported for a term not exceeding fourteen years, nor less than seven years, or
imprisoned (with or without hard labour, and solitary confinement) for a term not ex-
ceeding three years, and if a male, to be once, twice or tlirice whipped, if the court think
fit, in addition to the imprisonment. By sect. 55, if any person shall knowingly receive
any chattel, money, or valuable security, or other property whatever, the stealing, taking,
obtaining, or converting whereof, is made an indictable misdemeanor, by the act, every
such receiver shall be guilty of a misdemeanor, and transported for seven years, or im-
prisoned, (with or without hard labour, and solitary confinement,) for not more than two
years, and if a male, once, twice, or thrice whipped, if the court think fit, in addition to
the imprisonment. And by sect. 60, where the stealing of any property whatever is pun- ■
ishable by that act, on summary conviction, either for every offence, or for the first and ,
second offences only, or for the first offence only, the guilty receiver shall be liable for
every first, second, or subsequent offence of receiving, to the forfeiture and punishment,
to wiiich a person guilty of a first, second, or subsequent offence of stealing or taking
such property is, by the said act, made liable. 4 Steph. Comm. B. VI. c. 5.
If any person, within any of the places under the sole and exclusive jurisdiction of the
United States, or upon the high seas, shall take and carry away with an intent to steal
or purloin the personal goods of another, such person so offending, his counsellers, aiders,
and abetters, (knowing of any privy to the offences aforesaid,) shall, on conviction, be
fined not exceeding the fourfold value of the property so sold, embezzled, or purloined;
the one moiety to be paid to the owner of the goods, and the other moiety to the in-
former and prosecutor, and be publicly whipped, not exceeding thirty-nine stripes. Act
30th April, 1790, sect. 16. I Peters' s St. at Large, 114.
By act 23d August, 1842, the punishment for the offences mentioned in the preceding
article, upon conviction thereof, shall be by fine not exceeding one thousand dollars, or
by imprisoninent not exceeding one year, or by both according to the nature and aggra-.
vation of the offence.
By the act of 28th February, 1839, the punishment of whipping and the pillory was
abolished. The offence of larceny is not punishable under this act, unless committed in
a place under tiie sole and exclusive jurisdiction of the United States; and, to bring the
case within the statute, there must be an averment of such sole and exclusive jurisdiction
in the indictment. U. S. v. Davis, 5 Mason''s C. C. R. 356.
Wiiere a larceny is committed in a place not under the sole and excliisiva.jurisdiction
of the United Stales, it may yet be punishable under tlic third section of the act of 1825,
ch. 276. Ibid.
Offences are punishable under that section according to the State laws where they are
committed, under circumstances or in places in which, before that act, no court of the
United States had authority to punish them. Ibid.
* The luggage of passengers, by steamboat, comes under the description of" goods,"
witiiin this provision. Reg. v. Wright, 7 Car. S^- P. 159.
t Theft, on navigable rivers, to the value of 40s. was felony, without benefit of
clergy, by 24 Geo. II. c. 45. now repealed, by 7 iSf 8 Geo. IV. c. 27.
t It is immaterial that the intention with which he receives them is for the purpose
of concealment, and not for profit. R. v. Richardson, 6 Car. Sf P. 335. Rex v. Davis,
lb. 177.
HISTORIA PLACITORUM CORONA. 516'
Larceny committed on board of an American ship in an enclosed dock in a foreign
port, is not punishable under the statute of 30th April, 1790, ch. 9, sect. 16. U. S. v.
Hamilton, 1 Mijson''s C. C. Rep. 152.
The feloniously stealing goods which had been cast away from a vessel wrecked at
Rockaway Beach, the goods when so taken having been above high-water mark in the
county oi Queen's, in the state of New York, was an offence under the 9tii section of the
act entitled, '• An act more effectually to provide for the punisiiment of certain crimes
against the United Slates," passed 3d March, 1825. U. S. v. Coombs, 12 Pelers^s R. 72.
Money, and bank-notes, and coin, are personal goods within the meaning of this sec-
tion respecting stealing and purloining on the high seas. U. S. v. Mouton, 5 Mason's
Rep. 537 ; see U. S. v. Davis, 5 Masojt's R. 356.
The taking, by the defendant, of an article delivered to him as a servant to remove
from one room to another, and converting the same to his own use, is larceny, and not
embezzlement. U. S. v. Clew, 4 Wash. C. C. R. 700. Lewer v. Com. 15 S. ^ R. 93.
If the finder of bank-notes convert them to his own use, with the full knowledge of
the owner, it is not larceny, but a civil injury. Porter v. Tennessee, Mart. S( Yerg. 226.
A bona fide finder of an article lost, as a trunk containing goods lost from a stage-
coach, and found on the highway, is not guilty of larceny by any subsequent act in
secreting or appropriating to his own use the article found. People v. Anderson, 14
Johns.. 294, Com. v. Snelling, 4 Binn. R. 379.
The finder of lost goods, is bound by the laws of Vermont to advertise them. If he
conceal or convert them, he is chargeable with larceny. State v. Jenkins, 2 Tyler, 379.
Larceny cannot be committed of goods and chattels found in the highway where there
are no marks by which the owner can be ascertained. Tyler v. People, Breese, 227.
One taking staves, though under a contract with the owner to have half for making
them, may be guilty of larceny. State v. Jones, 2 Dev. Sf Bat. 544.
If a person finds personal property on the highway, knowing, or having the means of
knowing the owner, and does not restore it, but converts it to his own use, such conver-
sion will constitute larceny. State v. Wetson, 9 Conn. Rep. 527.
Obtaining goods by a fraudulent purpose, the vender delivering them with an inten-
tion to part with the property in the goods, in no case constitutes a larceny. Mowrey v.
Walsh, 8 Cow. 238.
False pretences artd artifices in obtaining another's property by one entertaining a
felonious design, will constitute larceny, provided it does not appear that a temporary
trust or possession was extended to the party. Wilson v. State, 1 Port. 118.
A larceny may be committed of goods obtained from the ownej: by delivery if ob-
tained, onimo furandi. State v. Gorman, 2 iV. ^- M. 90.
It is constructive larceny in Pennsylvania to induce one by fraudulent means to part
with the property in goods; this description is confined to the possession of goods.
Lewer v. Commonwealth, \5 S. S^ R. 93.
Under an indictment for stealing a horse, the jury were charged that the question
was, tiie intention to steal at the time of the taking: an indictment as for obtaining
goods, &.C., under false pretences would not lie, it seems, unless there were a consent of
the owner to the taking. State v. Smith, 2 Tyler, 272. Id. 352.
Larceny may be committed on one's own property, where the intent is to charge an-
other with the value of it. Palmer v. People, 10 Wend. 165. The People v. Wiley,
3 Hill, R. 194.
Upon an indictment in Virginia for stealing a free mulatto boy, knowing at tlie time
that he was free, it was held, that the offence was complete under the statute, by kid-
napping without the actual sale: Held also, that the stealing a free negro with felonious
intent to appropriate him, was criminal, whether the person so stealing him knew him to
be free or not, and that an averment of knowledge in the indictment need not be proved,
but might be regarded as surplusage: Held also, that the consent of the boy, if given,
he being only of eight years of age, would not excuse the offence. DavenporVs case,
1 Leigh, 558.
A servant employed to drive the wagon of a common carrier cannot claim the exemp.
tion of his master in case of a fraudulent abstraction of goods entrusted to his care, which
would not amount to technical larceny in the master. Commonwealth v. Brown, 4 Mass. 580.
If a hostler in charge of a horse takes him away, animo furandi, it is a felony; if he
takes him only to use him, and then returns him again, it is a breach of trust. State v.
Self, 1 Boy, 212.
The act of South Carolina of March 5th, 1737, makes it larceny I9 steal a bank-note,
if it be proved to be a genuine bank-note. State v. Tillery, 1 N. S^M.^; State v.
Casados, ib, 91.
SIG"* HISTORIA PLACITORUM CORONA.
The statute of Alabama, making " promissory notes" the subject of larceny, does not
include "bank-notes." An indictment, alleging the larceny of " bills of credit," is bad,
the State having no authority to issue sucii bills. Culp v. State, 1 Porter, R. 33.
An indictment will not lie for larceny of "bills of credit" on the United States' Bank
of amount less than such bank is authorized by its charter to issue. Jb. 33.
Invalid bonds, notes, &c. are not the subject of larceny. Wilson v. Stale, Jb. 118.
Money and bank-notes and coin are ■ personal goods within the meaning of the
16th section of the Crimes Act of 1790, c. 9, respecting stealing and purloining on the
high seas. 1 Peters's U. S. Stat, at Large, 114. U, States v. Moulton, 5 Mason, 537.
"Personal goods," under the act of Congress of 1790, c. 9, do not include choses
in action, the latter not being the subject of larceny at common law. U. States v.
Davis, 5 Mason, 356.
At common law a chose in action is not the subject of larceny. Culj) v. State,
1 Port. 33.
Doves, being animals /erce naturee, cannot be subjects of larceny, unless when irr the
custody of the owner, as in a dove-house. Commonwealth v. Chace, 9 Pick. 15. So of
bees. Wallis v. Mease, 3 Binn. R. 546.
A martin in a trap in the woods cannot be a subject of larceny while it remains in the
trap. Norton v. Ladd, 5 N. Hamp. R. 203.
A mere letter is not a subject of larceny, and taking it away is not a criminal offence.
Payne v. People, 6 Johns. 103.
An indictment lies for taking skins from an Indian camp in the absence of the In-
dians. Pennsylvania v. Becomh, Addis. 386.
Under the act of South Carolina of 1826, corn growing in a field is a subject of lar-
ceny although not previously severed from the soil. State v. Stephenson, 2 Bailey, 334.
Massachusetts. — For the statutes, see Mass. Rev. Stat. ch. 126. §§ 11. 12. 13. 14. 15. 16.
17. 18. 19. Ed. 1836. Sapp. to Rev Stat. c. 31. p. 112. ed. 1839. Where several pack-
ages of goods were delivered to a common carrier, to be transported in a body, an ab-.
straction of one entire package, constitutes a taking in the sense of larceny. Com. v.
Brown, 4 Mass. R.580. Dame v. Baldwin, 8 Jd. 518. So where a miller having received
barilla to grind, fraudulently retained part of it, returning a mi.xture of barilla and plas-
ter of Paris, it was held to be larceny. Com. v. James, 1 Pick. R. 375, So articles of
clothing on a dead body, cast ashore firom a wrecked vessel, are the subjects of larceny.
Morison v. Sayward, 13 Jd. 402.
A person stealing goods in one State and bringing them into another, may be indicted
in the latter for the larceny. Com. v. Culling, 1 Mass. R. 116. Com. v. Andrews, 2 Jd.
14. So also in JV. Y. see post. So also in Connecticut, Rex v. Peat, Root's R. 69. The
State v., Ellis, 3 Conn. R. 185. So in Vermont, The State v. Bartlett, 11 Ver7n, R. 650.
So in Ohio, The State v. Hamilton, 11 Ohio R. 351. Vide U. S. v. Davis, 5 Mason, 256..
Sed aliter in N. C. The State v. Brown, 1 Hayes, 160. See also Siminons v. Co7n. 5 Binn.
R. 617, where the subject is much discussed. The State v. Knight, 1 Tdyl. R. 65. The
People v. Gardner, 2 Johns. R. 477. The People v. Schenk, Id. 479. This question is
still open to much difficulty. , In some States it has been settled by legislation. See post,
p. 516".
So also, may the receiver of such stolen goods, be indicted in the latter State for re-
ceiving them. And one aiding and abetting in a larceny in one county, and afterwards
concerned in the possession and disposal of the stolen property, in another county, though
the goods were removed to the latter county, without his agency or consent, may be
convicted of larceny in this latter county. Com. v. Dewitt, 10 Mass. R. 154.
The offence of breaking and entering ''a house not occupied as a dwelling house," in
the night time, and stealing therein property of less value than $100, is only a simple
larceny, and therefore to be punished with a niaxinmm of one year's imprisonment in
the State prison. Wilde v. The Com. 2 Mete. 408. So of .stealing in a dwelling house,
shop, &c. in the night time: though by ihc Rev. Slat, the same offence, if committed in
the day time, is made an nggraviilcd larceny. Com. \. Tuck, 20 Pick. R. 356. Hopkins
V. Com. 3 Mete. 460. Divoe v. Com. Jd. 316. Evans v. Com. 3 Id. 453. An indictment
for stealing in a dwelling house, shop, S(c. in the day time, property of less value than
$100, must contain the averment of day lime, or it will only be good as an indictment for
a simple larceny. Haggett v. Com. 3 Mete. 357. Hopkins v. Com. Id. 460.*
* It has been held in some cases, that when the thing stolen is not there in the usual
course, and is not such as is ordinarily kept there, stealing it, is not larceny, " in a dwelling
HISTORIA PLACITORUM CORONA. 516"
In an indictment for hrccny, the articles alleged to be stolen, must be averred to be
*' of the goods and chattels," of the right owner, if known; or of the goods and chattels
of some person unknown. Corn. v. Morse, 14 Mass. R. 217, 218. Com, v. Manley, 12
Pick. if. 173,
On an indictment for larceny, if value is alleged of part of the articles stolen, and none
of the remainder, though charged to consist of coin, jiidsrment will be arrested as to that
part to which no value is ascribed. Com. v. Smith, 1 Mass. R. 245.
A count in an indictment, charging that t(ie defendant broke and entered a shop, with
intent to commit a larceny, and did then and there commit a larceny, is not bad for du-
plicity. Com. V. Tuck, 20 Fick. R. 356.
The same, of a charge of breaking and entering a dwelling-house, and committing a
larceny. Com. v. Hope, 22 Pick. R. 1.
An indictment for larceny, charging the goods stolen to be the property of yl. is not
supported by evidence that they were the property of ^. Sf B. who were partners. Com.
V. Trimmer, 1 Muss. jR. 476.
On a charge of shop breaking and larceny, possession of part of the stolen goods is
prima facie evidence, both of the larceny of the whole property stolen, and of the break-
ing and entering. Com. v. Millard, 1 Mass. R. 6.
The word " fo4^i7Za" is good in an indictment, as a. denomination of a subject of lar-
ceny. Com. v. Jones, 1 Pick. R. 375.
Under the siat. of 1784, c. 66. § 1. providing against the stealing of "any note or cer-
tificate of any bank, or any public office, securing the payment of money to any person,
or certifying that the same is due," an indictment was held sufficient which charged the
defendant with stealing a " bank note" of a certain value, without a more particular de-
scription of the note. Com. v. Richards, 1 Mass. R. 337.
An indictment under the same siat. c. 66. § 8. for breaking a "store" is not sufficient,
although the words of the stat. are, " warehouse, shop, or other building whatsoever,"
unless it aver that the store is a building. Com. v. M'Monagle, 1 Mass.R. 517. Sed oliler,
under stat, 1804. c. 143. § 6. which contains the word store. Com. v. Lindsey, 10 Mass.
if, 153.
In an indictment for breaking and entering an office in the night time, under the last
mentioned stnt. c. 143. § 4, it is not necessary to aver that the office is " not adjoining
to, or occupied with a dwelling-house." Devoe v. Com. 3 Mete, R. 316. Evans v. Com.
Id, 453. fhillips v. Cmi. Id. 588, Sed vide also Com. v. Tack, 20 fick. R. 356.
Stealing in the night time, in any dwelling-house, &c., was not provided for in the
Rev, Statutes. (See Com. v. Tuck, cit. sup. and Hopkins v. Com. 3 Mete. R. 460.) but
this omission was supplied by the act of Feb, 18, 1843. See Tally v. Com. 4 Mete.
R. 357.
New York.— The statutes of New York will be found in 2 Rev. Stat. 679. §^ G3, 64,
65. 2 Id. 690, §§ 1, 66, 67, 68, 69, 70.
When the personal pro))erty of one is through inadvertence left in the possession of
another, and the latter animo furandi conceals it, he is guilty of larceny; knowing it to
be the property of another, his possession will not protect Jiim from the cliarge of felony.
The People v. McGarren, 17 Wend. R. 460. The People v. Cogdcll, 1 Hill R. 94.
To constitute larceny tiie possession of the property must be acquired animo furandi.
The People v. Anderson, 14 Johns. R, 294.
A mere intention existing afterward to convert the property, will not constitute the
offence of larceny. Id.
One who obtains the bailment of goods fraudulently, intending to deprive the owner of
his property, may be convicted of larceny under an indictment alleging that he felo-
house," &c., as linen left in a shop to be sent to a seamstress; Anony. 8 Mod. 165; or to
a laundress. 2 EasVs P. C. 642 ; or a watch left at a watchmaker's shop to be repaired;
Stone's case, I Leach, C. C. 334 ; 2 EasVs P. C. 643. & C; or a coachman's coat hung
up in a stable, that not being the usual place of keeping it; Sea's case, 1 Leach, C. C. 304;
2 East, I'. C. 643. .S. C ; or uncurrent money on board of a ship in port; Grimes's case,
2 East's P. C. 647; Foster, 78, 79; but such a construction seems to be inconsistent
with the plain meaning of the law, and the reason of the exception is not very apparent.
Where the thing stolen was left in a house by mistake, and was such as miglit in the
ordinary course, be in the house, the stealing of it from the house was held to be larceny
in a dwelling house, within the construction of the statute against such-larceny. Car-
roll's case, Mood. Cus. 89; Mass. Com. Rep. 25.(«)
516° HISTORIA PLACITORUM CORONA.
niously stole, took, and carried away the property, &c. Cary v. Hefterling, 1 HilVs
iJ. 311.
In tiie prosecution of an indictment for a larceny, if the crime be established in respect
to a single article, though tlie indictment describe several, the defendant may be con-
victed. 3 HiWs R. 194.
A trial and acquittal for robbery is a bar to an indictment for larceny where the
property alleged to have been taken is the same. The People v. McGowan, 17 Wend.
R. 386.
The rule in such case is, that if the former indictment might have been sustained by
proof which would be sufficient to sustain the second indictment, n. prima facie case is
made out for the prisoner by the production of the record of acquittal, and without fur-
ther proof on the part of the prosecution, he is entitled to be discharged. Id.
On the trial of an indictment for stealing foreign bank bills, it is incumbent on the
prosecutor to produce at least prima facie evidence of the existence of such banks and of
the genuineness of the bills. The People v. Caryl, 12 Wend. R. SAl. ■=^
As to the bills themselves, it is not necessary to prove by positive testimony that the',
names subscribed to them are in the handwriting of the officers of such^banks ; but it^
should at least be proved by a witness familiar with the bills, that he believed them to be
genuine. M. ^
By the Rev. Stat. 2 Rev. St. 698, § 4, it is enacted that every person who shall felo-
niously steal the property of another in any other state or county, and shall bring the
same into this state, may be convicted and punished in the same manner as if such lar-
ceny had been committed in this State; and in every such case such larceny may be
charged to have been committed in any town or city into or through which such stolen
property shall have been brought. See The People v. Burke, 1 1 Wend. R. 129. The
People V.' Gardner, 2 Johns. R. 477, and the remarks of the Ch. Just, on this latter case
in The People v. Burke.
The principle established by the N. Y. Stat, was applied without the intervention of a
statute in Com. v. Culling,! Mass. R. 116, and Com. \. Andrews, 2 Id.l'i. See this note,
p. 516".
The true construction of the Stat. Sess. 42. ch. 246, § 4. providing that every person
"wlio shall be a second time convicted of petit larceny shall be adjudged to imprisonment
in the State prison, is that the second offence must be committed after a conviction for
the first, in order to warrant an enhanced penalty. It is not enough that there be two
successive petit larcenies by the same person which are severally and successively prose-
cuted to conviction ; though the second indictment charge the first conviction as a part
of the crime. The People v. Butler, 3 Cow. R. 347.
An indictment for petit larceny, charging it as a second offence, is good, though in
respect to the first offence, it merely alleges that the defendant was convicted, &c. with-
out averring in terms a judgment or sentence, and though it does not specify the pro|)erly
to which the first offence is related, or the person from whom it was stolen: aliter, if the
indictment omits to aver that the defendant had been pardoned, or otherwise discharged
from the first conviction, before the commission of the second offence. Stevens v. The
People, 1 Hill's R. 261.
New .Tersev. — For the statute, see Elm. Dig. 107, 108.
If one takes the goods of another out of the place where they were put, though he is
detected before they are actually carried away, the larceny is complete. • The State V;
Wilson, Coze R. 439.
A prisoner cannot be tried by two justices of the peace on a charge for larceny,
"without an accusation in writing." See Elm. Dig. 107, § 32. See Statutes of the Slate
of N. J. revised in 1847, tit. VIII. Crimes and Punishments,/). 256.
Pennsylvania. — The SUdutcs of Pennsylvania wiU be found in the Act of April 5,
1790, sect. 3. 2 Smith's L. .^Sl. Stroud's Purdon, 956. 6th ed. Id. 1051. 7th ed. sects.
4, 5. 9. Act of 21 March, IBOG. 4 Smith's L. 334. Stroud's Purd. 958, sects I, 2. Act
of 30 January, 1810. 5 Smith's L. 81. Stroud's Purd. 958. 6th ed. 1054. 7th ed. as to
bank notes amended by Act of 10 March, 1817, sect. 1. 6 Smith's Zi.412. Stroud's Purd,
959, 6th ed. 1055, 7ih ed. The Act of 29 April, 1844, sect. 2. Pamph. L. 513, enacts
that in all cases where taxes are assessed and paid on dogs in Philadelphia and Alle-
gheny counUcs, the said dogs shall be considered as personal property.
If the owner.of goods part with the possession, for a particular purpose, and the person
wlio receives the possession avowedly for that purpose, has a fraudulent intention to
HISTORIA PLACITORUM CORONiE. 516?
make use of the possession, as the means of converting the goods to his own use, and
does so convert them, it is larceny. But if the owner intends to part with the property,
and delivers possession absolutely, and the purchaser receives the goods for the purpose
of doing with them what he please, it is not larceny, although fraudulent means may
have been used to induce him to part with them. Lewer v. Com. 15 S. ^ R. 93. 97.
Taking is a material part of larceny, but it may be presumed from the possession of
the property. I'enn v. Myers, Add. R. 320. Id. v. Becomb, id. 386.
At common law, larceny cannot be committed of a dog. Nor does the 4th sect, of the
act of April, 1790, extend the crime beyond its ancient limits. Findley v. Bean,
8S. Sf R.51L But see the local act of April 29, 1844, § 2, sup.
Under the act of April 5th, 1790, an indictment for stealing bank notes must lay
them as promissory notes for the payment of money, and therefore an indictment for
stealing a "ten dollar note of the President, Directors and Company of the Bank of the
United States," is bad. Com. v. Boyer, 1 Binn. R. 201,
Under the Act of 1810, an indictment for stealing bank notes must aver in general
that they were issued by a bank incorporated by law, or name the bank, and aver tliat it
was incorporated; or show in some sufficient manner that the notes were lawful, and
therefore an indictment charging the defendant with stealing bank notes generally,
describing them as " promissory notes for the payment of money," is bad, Spangler v.
Com. 3 Binn. R. 533.
Under the act of Assembly of 1817, however, it is not necessary to state that the
bank was duly incorporated. McLaushlin v. Com. 4. Raw. R. 464.
An indictment for stealing three promissory notes for the payment of money, com-
monly called bank-notes, " on the Bank of the United States" was held to be good.
Id. 464.
An indictment for stealing "a bank-note of the Bank of Baltimore," without describ-
ing it a-s a promissory note for the payment of money, was held bad under the act of
1790. Com. v. McDowell, 1 Browne, R. 360.
County orders are not bills of exchange, and are not enumerated in the act of
5ih April, 1790. When a statute creates a felony, to authorize a judgtoent on con-
viction, the indictment must conclude contra formam statuti. Warner v. Com. 1 Barr.
R. 154.
ViRGiNTA.— For the statutes see Rev. Code, c, 171, §. 6; Supp. to R. C. 295. 308;
Rev. Code, ch. 152, §. 1; Rev. Code, ch. 154, §. 8: Rev. Code,ch. 160, §. 7.
A prosecution may be maintained under the Virginia act of 1806 for stealing a
bank-note of any other State. Cummings v. Commonwealth, 2 Virg. Cos. 128.
The Virginia act of 1806, which made it felony to steal any " bank-note," embraced
any available chose in action bearing that name; nor is the meaning of the term
restricted by the 8th section of the act of 1819. Pomeroy v. Commonwealth, lb. ^42.
In the construction of this act of 1806 it has been held, that a general description of
a bank-note, as one for a specified sum and current within the United States, without
mentioning the name of the bank by ^Evhich it was issued, is sufficient in an indictment
for the larceny thereof. Id. 128.
On a prosecution for larceny of bank-notes it is not indispensably necessary to pro-
duce them on the trial. Moore v. The Com. 2 Leigh, R.liil.
No other possession of bank-notes, &c , mentioned in this act, is necessary to render
them the subject of larceny than is required in the case of goods : and if the ex-
pression, " from the possession" means an actual possession, it can only apply to taking
by robbery. Angel v. The Com. 2 Virg.^ CaseSy 228.
I
617 HISTORIA PLACITORUM CORONA.
CHAPTER XLIV.
CONCERNING THE DIVERSITIES OF GRAND LANCINIES AMONG THEM-
SELVES IN RELATION TO CLERGY.[1]
Altho the punishment of all grand larciny by the law is death, («)
yet ill relation to clergy, which is a kind of relaxation of the severity
of the judgment of the law, there is difference made by acts of par-
liament between some larcinies and others.
By the antient privilege of the clergy, and by the confirmation and
(a) In aniient times it was in some eases punislied wiih the loss of a thumb, in others
wiih pillory, and the loss of an ear. Corone 434. Britt. 24. b.
[1] This has now become a title of curiosity only, the Stat. 7 & 8 Geo. IV. c. 28,
having enacted by Sect. 6, that benefit of clergy with respect to persons conticled of
felony shall be abolished : and by Sect. 7, tliat no person convicted of felony shall suffer
deatl), unless for some felony which was excluded trom the benefit of clerg-y before or on
the first day of the then session of Parliament, {Feb. 8, 1827,) or which should be made
punishable with death by some statute passed after that day. (
This benefit of clergy constituted in former times so remarkable a feature in crimi-
nal law, and a general acquaintance with its nature is still so important for the illus-
tration of the books, that it may be desirable to subjoin farther notice on the subject.
It originally consisted in the privilege allowed to a clerk in orders, when prosecuted in
the- temporal court, of being discharged from thence and handed over lo the court
Christian, in order to make canonical purgation, that is, to clear himself on his own
oath, and that of other persons as his compurgators, {vide jRectics's Hist. Eng. L. vol. 2,
pp. 14, 134 ; 25 Edw. III. st. 3, 4,) a privilege founded, as it is said, upon the text of
Scripture, "Touch not mine anointed, and do my prophets no harm." In England
this was extended by degrees to all who could read, and so were capable of becoming
clerks. {Reeves nbi supra et vol. 4, p. 156.) But by 4 Hen. VII. c. 13, it was provided,
that laymen allowed their clergy should be burned in ihe'hand, and should claim it only
once; and as to the clergy, it became the practice in cases of heinous and notorious
guilt, to hand them over to the ordinary, absque purgntione facicnda, the effect of
wliich was, that they were imprisoned for life. 4 Bl. Com. 369. Afierwards, by
18 Eliz.c. 7, the delivering over to the ordinary was abolished altogether, but imprison-
ment was authorized in addition to burning in the hand. By 5 Ann. c. 6, the benefit of
clergy was allowed to those entitled to ask it, without reference lo their ability to read.
By 4 Geo. I. c. 11; 6 Geo. I. c. 23, and 19 Geo. III. c. 74, the punishment of trans-
portation was authorized in certain cases, in lieu of burning in the Jiand; and by the
act last mentioned the court might impose, instead of burning in the hand, a pecuniary'
fine, or (except in manslaughter) order the offender to be whipped. As to the naiure of
the offences to which the benefit of clergy applied, it had no application except in capital
felonies, and from the more atrocious of these it had been taken away by various sta-
tutes prior to its late abolition by 7 & 8 Geo. IV. c. 28, s. 6. As the law stood at the
time of- that abolition, chirks in order were, by force of the benefit of clergy, discharged
in, clergyable felonies without any corporal punishment whatever, and as often as they
ofiended, and the only penalty being a forfeiture of their goods; and the case was the
same with peers and peeresses, (as to whom see 4 & 5 Vict. c. 22,) but they could claim
it only for the first ofl'cnce. As to commoners also, they could have benefit of clergy
only for the first offence, and they were discharged by it from the capital punishment
only, being subject on the otlier hand, not only to forleilure of goods, but to burning in
the hand, whipj)ing, fine, irnprisoiiinent, or in certain cases transportation in lieu of the
capital sentence. 4 Bl. Corn. p. 371 ; 4 Sleph, Com. 436.
HISTORIA PLACITORUM CORONA.. 517
special concession of the statute of 25 E. 3. cap. 4, the benefit of
clergy was to be allowed in all treasons and felonies touching other
persons than the king himself and his royal nnajesty.
Therefore as well in grand larciny, as in other felonies, clergy is
to be allowd, where it is not taken away by some subsequent act of
parliament.
And in all thdse cases, wherein it is so taken away, the indict-
ment of such larciny or other felony must bring the case within
the particular provision of those statutes, which in such cases takes
away clergy, otherwise it is to be allowd, tho upon the evidence it
may fall out, that the truth of the fact appears to be such, as is
within the special provision of those 'statutes, that so take away
clergy.
The statutes therefore, that take away clergy in some particular
larcinies, are these that follow:
I. By the statute of 23 H. 8. cap. 1. "All persons found guilty
of robbing any church or chapel, or other holy places, or of robbing
any person in his dwelling-house, the owner or dweller of the same
house, his wife, children or servants then being within, and put in
fear and dread by the same, or for robbing any person in
or near the highway, and those, that are found guilty of [518]
abetting, procuring, helping, or counselling thereof, are ex-
empt from the benefit of clergy, except such as are in the order of
sub-deacon."
But upon this statute, tho there must be a stealing of goods, there
need not be an actual breaking, (6) for the stealing in the house, and
putting the dweller, his wife or servants in fear, is robbery.
This statute extended only to a conviction by verdict or con-
fession, but the statute of 25 H. 8. cap. 3. extended it to a standing
mute, or challenging of above the number of twenty, or not directly
answering, and also in case of an arraignment of a prisoner for a
felony by bringing the goods he stole into one county, where he
had first stolen the goods in a foreign county, in one of those man^
ners mentiond in the statute of 23 H. S. it gave power to the jus-
tices, upon examination of the fact, to put the prisoner from his
clergy, but herein these things are observable: 1. It did not give
power of examination, where the prisoner confessed the felony, but
where he put himself upon his trial. 2. These examinations need
rot be recorded. 3. It did not extend only to those cases, where
the prisoner was to be ousted of his clergy hy force of the statute
of 23 //. 8. and not to other cases, where he was to be ousted of
his clergy by any subsequent statute, and therefore upon a robbery
in a dwelling-house, where the owner, liis wife or servants were
within, and not put in fear, he could not be ousted of his clergy by
(6) In the case of robbing a church there must be an actual breaking to bring it
within this statute; but by 1 E. 6. cap. 12. it is not necissary, for by that statute all
felonious taking of goods out of churcli or chapel is ousted of cleigy in all cases,
except that of cliallenging above twenty, which defect is supplied by 3 & -^ W. S^ 31.
cap. 9.
518 HISTORTA PLACITORUM CORONiE.
examination in a foreign county upon the statute of 25 H. 8. Anders.
Sep. n. 158. p. 114. Co. P. C. cap. 52. p. 115.
And therefore it was ruled in one Calebs case, a woman broke a
dwelUng-house in Kent in the day-time, none being there, and took
away goods above the value of five shillings, and under the value
of ten shillings, and carried the goods into Sussex, where
[[ 519 ] she was indicted of larciny, and upon exarhination it ap-
peard she had broke the house, and took the goods ui
supra, being above five shillings and under ten shillings, and the
jury found accordingly, and she was burnt in the hand, and dis-
charged, for a man in such a case should have had his clergy in the
county of Sussex, because tho the statute of 39 Eliz. cap. 15. take
away clergy in the proper county, yet the statute of 25 H. 8. as to
examination and taking away clergy in a foreign county extends
only to felonies put out of clergy by 23 ZT. 8. or 5 <§' 6 E. 6. cap. 10.
coram domino Bridgman in Sussex ex libra suo.
Again, the statutes of 23 H. 8. and 25 H. 8. did put accessaries
before in such cases from the benefit of their clergy, as well as the
principals, but as to that they are repeald by 1 E. 6. cap. 12.
But by the statute of 1 E. 6. cop. 12. tho the statute of 23 H. 8.
be re-enacted as to the principals in the cases before mentioned, and
also in cases of breaking houses to the intent to steal, (any person
being therein, and put in fear) if convict by verdict or confession, ot
standing mute, and not directly answering, yet it hath this general
clause, and iii all other cases offenders shall have benefit of their
clergy, and therefore by this act these changes were wrought.
1. In the cases, where clergy was excluded by this act, there is no
saving for persons in holy orders.
2. It repeald the statute of 25 H. 8. cap. 3. as to examination in
a foreign county, and for that reason the statute of 5 Ǥ' 6 E. 6. cap.
10. was made, whereby that statute was revived, and stands now in
force in every article thereof.
3. It restored clergy to accessaries before in all those cases,
wherein they were ousted of clergy by 23 Sf- 25 H. 8, and therefj[>re
the statute of 4 4' 5 Ph. Sf M. cap. 4. was made, whereby acces-
saries before in murder, or robbery in any dwelling-house, or in
or near the iiighways, are ousted of clergy upon conviction, out-,
lawry, standing mute, or challenging above twenty, or not directly
answering.
So that the statutes of 23 and 25 H. 8. stand at this day in force
with this addition, that persons in holy orders stand equally
r 5201 exempt from the benefit of clergy with others by the statute
of 1 E. 6. as to cases within that statute.
But if only a stranger were in the house, and neither the owner,
his wife, children or servants, this gives no discharge of clergy by the
statute of 23 // 8. and therefore there was provision in that case by
the ensuing statute.
II. But the statute of 1 E. 6. cap. 12. breaking of any house by-
night or by day, any person being in the house or put in fear, if it
HISTORIA PLACITORUM CORONA. 520
were with an intent to steal, tiio nothing he stolen, a principal was
excluded from clergy in all cases, except outlawry and- challenging
above twenty.
And also in a foreign county, yet if upon examination it be so
found, he is ousted of clergy by the statute of 5 <§• 6 E. 6. cap. 10.
but the accessary before or after is not ousted of clergy by this
statute.
Ill, By the statute of 5 4' 6 E. 6. cap. 9. " If any person be found
guilty according to the laws of. the land for robbing any person or
persons in his or their dweUing houses, or dwelling-places, the owner
or dweller, his wife, children or servants being within the same
house or place, or in any place within the precincts thereof, such
offender shall not be admitted to clergy, whether the owner or
dweller, his wife or children, then or there being, shall be waking or
sieeping.
." And also he, that robs any person in any booth or tent, in any
fair or market, his wife, children, or servant then being within the
booth or tent, shall be excluded from clergy.
This statute is of force, and of great and daily use, and therefore it
will be convenient to make some observations upon it.
Upon this statute tliese things are observable:
1. That it extends not to oust clergy in any case but upon con-
viction of the offender, either by verdict or confession, for a man
that confesseth is found guilty by his confession, but it extends
not to standing mute, challenging above twenty, or not directly
answering.(c)
And therefore it is considerable, whether, if a man be
attaint by outlawry, he may not be admitted to his clergy [521 ^
as a clerk attaint, which, tho it avoids not the attainder, yet .
it may take off the execution, for clergy is allowable to a person
attaint, if the case be within clergy, Crompf. Jurisdic. of Courts,
126. b.(d) Dy. 205. a. b. and it is held, outlawry upon this statute
excludes not clergy. 11 Co. Rep. 29. b. Pouller^s case.
2. That yet by the statute of 4 <§• 5 P. cS* M. cap. 4, clergy is taken
away in this case from the accessary before, as well as in case of
standing mute and challenging above twenty, or not directly answer-
ing, for the statute of 4 <§• 5 P. 4' M. extends to accessaries before in
all cases of robbing in dwelling-houses, as well those within this
statute, as those upon the statute of 23 H. S.
8. It hath been held by good opinion, that this statute extends
only to him that actually enters the house and steals there, and that
therefore \{ ^. B. and C. come to a house in the day-time with an
intent to enter, and steal goods, and that ,./i. only breaks and enters
the house, and takes the goods, that J2. only shall be excluded of his
clergy, and B. and C. that were aiding and assisting should have
(c) But by 3 ^ 4 W. Sf M. cap. 9. it extends to all these cases, as also to the case of an
outlawry.
(d) Crompt. Justice 110, b.
621 HISTORIA PLACITORUM CORONA.
their clergy: this was the opinion of divers jtidges at a meeting in
Serjeanis-In?i 30 Novemb. 1664. wiio grounded themselves princi-
pally upon Jiudley''s case,(^) upon the statute of 39 Eliz. hereafter
cited, but I think they are all to be excluded of their clergy upon
this statute of 5 c^' 6 E, G. and there cannot be .a stronger authority
in it, than the judgment of parUament in the statute of 4 (§• 5 F. ($' M.
cap. 4. whereby it is enacted, " That if any person shall maliciously
command, hire, or counsel any person to commit any robbery in any
dwelhng-house, he shall be excluded of clergy.
And, certainly he, that is present, aiding, and abetting, is more
than an-accessary hefore.,\iw\. then perchance the indictment must not
run generally, t^;a5/?re*e/z/, aiding, and abei ting, hut that B. andO.
did maliciously command, hire, or counsel A. to commit the fact,
l)y. 1S3. 6. 11 Co. Rep. 37. a P ou I ter^s case; tho, in my own
£ 522 2 opinion, the words maliciously present, aiding,and abetting,
do countervail the former, and much more, and it cannot be
-intended, that the statute meant to take away clergy from those that
maliciously counsel or command, which at most makes but an acces-
sary, and yet that he that is present and abetting, shall have his
clergy.
But, in my opinion, all may be indicted, quod fregerunt &(• intra-
verunt, 8fc. as in case of burglary or robbery, and it dift'ers from the
statute of 39 Eliz. and the rather, because the statute of 4 4' 5 P. S;
M. extends not to offenses made after by 39 Eliz.
4. This statute extends not to breaking of the house with an intent
to rob it, but there must be an actual robbing, or taking away goods.
5. The robbing by day or night is within this statute.
6. The dweller, his wife, children or servants must be within the
precinct of the house sleeping or waking, but it is not necessary they
should be put in fear, neither is it necessary they should be in the
same room where the robbery is done.
7. But it is not enough, that a stranger be in the house, unless the
owner, his wife, children, servants or some of them be in the house
at the time also, tho it be enough upon the statute of 1 E. 6. cap. 12.
~ S. There must be not only an actual stealing of some goods in the
house, but an actual breaking of the house, for the statute speaks o-f
robbing, which imports more than a bare taking of goods.
t^ug. 14 Car. 1. Thomas Williams, Thomas Bates, and Richard
Harper having broken the lodgings of Sir PI. Hungate at Whitehall,
and taken thence several goods of Sir H. Hungate, Croke and
Crowley were advised with, to pen the indictment, who agreed these
points; 1. It must be laid for breaking tho king's mansion-house
called Whitehall,{f) and stealing the goods of Sir H. Hungate, for
all the lodgings in Whitehall were part of the king's house, and
ditfer'd from an inn of court, where each chamber is a seve-
[ 5233 '■''^1 mansion-house, because every one hatha several interest
in his ciiamber. 2. That upon the statute of 5 <5* 6 E. 6.
the indictment need only be, that he broke the king's house called
(e) Cro. Car. 473. by the name of Evans. (/) Sec Kel. 27.
HISTORIA PLACITORUM CORONA. 523
Whitehall, and stole the goods of Sir //. Hitngaie, (\ivers of the
king's servants then being in the house, without saying, that any-
body was put in fear (which was necessary by the statute of 23 H.
8.) but merely upon the statute of 5 <§' 6 E. 6. and accordingly tl^e
indictment was drawn. 3. That upon an indictment uj)on 23 //. 8.
or upon 5 E. 6, there must be an actual brealung of the house, and
also a robbery or stealing of some thing.
4. That if a thief come into the house, the doors being open, and
then breaks open a chamber-door, and steals goods from thence, this
ig a breaking of the house within those statutes, and accordingly at
the gaol-delivery at the Old Bailey, 29 ^t/g. 14 Car. 1. those two
justices being present, they were indicted, and Harper being fled,tlie
other two were found gnilty; Williams was reprieved before judg-
ment, but Bates was executed, ex libro Twisclen.
Upon this latter resolution it seems, that Bayne^s case in Pop-
ham^s Rep. 36 4' 37 Eliz. n. 10 was somewhat too severe(^), where
one came into a tavern to drink, and stole a cup that was brought
them to drink in, the owner and his servants being in the house, and
upon this lie was ousted of his clergy upon tlie statute of 5 8,' 6 E. 6.
which case was doubted by the justices upon a meeting among them
Novemb. 1664. but it was then agreed, if two come into a tavern to
drink, the door being open, and divers of the family being in the
house, and one goes up stairs and breaks a chamber-door, and steals
goods, and both depart before the felony be discovered ; resolved by
us all, that clergy is taken away from him that breaks open the door,
if he be indicted upon the statute of 5 E. 6. but not from the other,
for the breaking of the door was an act of violence, and so the break-
ing of a counter or chest •,(A) for a chest vide postea.
But tho the breaking of the door, or perchance of a counter, may
be such an act, as may make it a robbery within the statute of 5 E. 6.
yea, and altho in that case before-mentioned, and in a case
upon a special verdict out of Cambridgeshire before-men- [[524']
tioned, it was held the breaking of a chest was all one as to
this purpose with the breaking of a door, tho the chest were not fixed
to the freehold, quod videa ante cap. 43. yet I must needs say, that
the course at Newgate hath been always since my time, that the
breaking open of a chamber-door, and of -a counter or cupboard fixed
to the freehold, hath brought it within the statute of 5 E. 6. to oust
of clergy; yet when a party enters the doors open, and breaks up
only a chest or trunk, and steals thence goods, that is not such a rob-
bery, as is within the statute of 5 E. 6. to oust of clergy, and so was
the difference agreed at Newgate 1671. upon the robbery of the cook
o( Serjeants-inn in Fleet-street, by certain persons that came in to
eat, and slipt up stairs, and picked open a chamber-door, and broke
open a chest, and stole plate of good value: it was agreed, that the
picking open the lock of the chamber-door brought it within the
statute to oust clergy, but the breaking open of a chest or trunk only
ig) This case denied to be law, Kel. 68. (A) See Kel. 69.
524 HISTORIA PLACITORUM CORONA.
would not oust clergy upon the statute of 5 E. 6. or 39 Eliz. and so
by Zee secondary was the constant course at Newgate in his time.
As to robbery in booths or tents in fairs and markets, within the
5 E. 6. cap. 12. H. A\ Eliz. B. R. the robbing of a shop in West-
minsieK-hall was ruled not to be within this statute to be ousted of
clergy.
If a servant opens a chamber-door in his master's house, and stesiis
goods, Sir N. Hyde, wiio was severe enough in cases criminal,
doubted whether this were within this statute to oust him of his
clergy: vide infra.
IV. The next statute relating to this matter of robbing in houses
is 39 Eliz. cap. 15. which recites, that the penalty of robbing of
houses in the day-time, no persons being in the house at the time of
the robbery committed, is not so penal as robbery in any house, any
person being therein at the time of the robbery committed, which
hath emboldened persons to commit heinous robberies in breaking
and entering persons houses, none being in the same, and enacts,
" That if any person shall be found guilty by verdict, con-
[]525]] fession, or otherwise for the felonious taking away in the
day-time of money, goods, or chattels to the value of five
shillings or upwards, in any dwelling-house, or any part thereof, or
any out-house or out-houses belonging and used with the said dwell-
ing-house or houses, altho no person shall be in the said house or
houses at the time of the felony committed, every such person shall
be excluded from the benefit of clergy.
Upon this statute these things are observable:
1. That the indictment, whereupon such person is to be excluded
of the benefit of his clergy, ought precisely to follow the statute, viz.
it must be in the day-time, and no person being in the house, and
must appear to be so upon evidence.
2. And therefore, if either the indictment pursue not the statute,
or the evidence make not good the indictment, he is to have his
clergy, and therefore upon such an indictment he may be acquitted
of stealing against tlie form of the statute, and found guilty of simple
felony at common law, tho the indictment conclude contra formam.
statuti; and the same law it is, if an indictment be formed upon the
statute of 23 H. 8. or 5 4* 6 E. 6. for tho the indictments in those cases
be special, and conclude sometimes contra formam statuti, yet they
include felony at common law, and tho the indictment concluding con-
tra formam. statuti be good, it is not necessary, so as the circum-
stances required by the statute be pursued, for tlie statutes in these
cases make not the felony, but only exclude clergy, when the felony
is so circumstantiated, as the statute mentions, and is so expressed in
the indictment. ^
.3. If the indictment be formed upon this statute, a« that- he broke
and entred the house in the day-time, and stole, no person being in
the honse, if it appear upon tho evidence, that the felony was coni-
juitted without these circumstances, as if it were committed in the
HISTORIA PLACITORUM CORONA. 525
night, or not in the day, so that it is burglary, or if committed when
some of the family were in the house, in which case he had been
ousted of his clergy by the statute of 5 4* 6 E. 6. if the indictment
had been ,formed upon that statute, yet in such case the offender
being specially indicted upon the statute of 39 Eliz. shall be
found guilty of simple felony at common law, and shall not [ 526 ]
be ousted of his clergy by the statute of 23 //. 8. 1 ^. 6. 5 &
6 E. 6. or IS Eliz. cap. 7. because the indictment is not formed upon
those statutes, but only upon 39 Eliz. and if the circumstances of the
statute of 39 Eliz. upon which the indictment is formed, be not pur-
sued in the evidence, he must have his clergy, and so is the constant
practice,
4^ Altho this statute of 39 Eliz. in the body of the act speaks
only of stealing, yet in as much as the preamble speaks of robbery,
it hath been always taken, that upon this statute, as well as upon
the, statute of 5 E. 6. there must be these three things concur to oust
clergy : 1. There must be an actual stealing or taking away of
goods of some value upon the statute of 5 <^' 6 E. 6. and of goods to
the value of five shillings upon this statute, but it is not necessary,
that the goods be carried out of the house, for if he take them out of
a trunk or cupboard, and lay them in the room, and be apprehended
before he carry them away, it is a stealing within the statutes, and at
common law also, as was resolved by all the judges, uno dissentiente,
in a case out of Camhridgeshire upon a special verdict there found
upon an indictment upon the statute of 5 4* 6 E. 6. anno 1664.(/) 2. It
must be a stealing of goods in the house, and therefore he that steals,
or is party to the stealing them, being out of the house, is not by this
statute to be ousted of his clergy. 3. Upon this statute, as well as
upon the statute of 5 <§' 6 E. 6. there must be some act of force or
breaking.{k)
Now what shall be said such a force, as must bring the party
within this statute, hath been touched before, to which I add, 1. That
whatsoever breaking will make a burglary, if it were in the night,
will make such a force or breaking, as is within this statute
and that of 5 E. 6, to oust the thief of iiis clergy, as if he f 527 1
break open the outward or inward door of the house, pick
the lock of such door, draw the latch, break open the window, ^-c.
2. Some breaking or force will oust clergy upon the statutes of 5 8c
6 E. 6. and 39 Eliz. which will not make a burglary, if it were in
the night, as where he enters by the doors open, and breaks open a
(t) This was Simpson's case mentioned below, and is reported Kel. 31.
ik) Bui now by 10 i^- 11 W. 3. cap. 23. " Whoever by nig-ht or day shall in any shop,
ware-house, c6ach-liouse, or stable, privately and feloniously steal to the value of 5s. or
more, tho such shop he not broke open, nor any person therein, or shall assist, hire or
command any person to commit such offense, shall be excluded from the benefit of
clergy." Now repealed and supplied.
And by 12 Ann. cip. 7. "Whoever shall feloniously steal to the value of 40s. in any
dwelling-house or out-house thereto belonging, altho it be not broken, nor any person
therein, their aiders or assisters arc excluded from clergy." Repealed aqd supplied.
527 HISTORIA PLACITORUM CORONA.
counter or cupboard fixed to the freehold, as was agreed in the Cam-
b?'idgeshire case hefore-mentiond.
7'. 16 Car. 2. Si mson's case, where the case was thus: a man
came into a dwelling-house, none being within, and the doors being
open, and broke up a chest, and took out goods to the value of five
shillings, laid tliem on the floor, and before he could carry them out
of the chamber, he was apprehended, and upon this matter specially
found he was ousted of his clergy upon the statute of 39 Eliz. for the
taking them out of the chest was felony by the common law, and tjie
statute of 39 Eliz. did not alter the felony, but only excluded 'clergy;
per omnes justiciarios Anglias. Ex lihro Bridgman.
But whereas in that case the breaking open of the chest was held
such a force or breaking, as excludes clergy upon that statute, I have
observed, that the constant practice at Newgate hath not allowed
that construction, unless it was a counter or cupboard fixed ; yet note,
this resolution of 16 Cur. was by all the judges of England then
present, and tho one dissented, 'he after came about to the opinion of
the rest, Ideo qusere.
T. 13 Car. 1 B. R. Eva}is and Finch{l) were arraigned ai New-
gate upon an indictment, that they at twelve of the clock in the day,
domiun mansionalern Hugonis Audely de interiuri templo, nulld
persona in eadeni domo existente,fregerunt, <5* 40/. from thence did
steal, a special verdict was found, that Evans by a ladder climbed
up to the upper window of the chamber of H. Audely, and took out
of the same forty pounds, and Finch stood upon the ladder in view
oi Evans, and saw Evans in the chamber, and was assisting to the
robbery, and took part of the money, and that at the time of the rob-
bery divers persons were in the Inner Temple-hall, and in
[528]] divers other parts of the house ; ruled, 1. That a chamber
in an inn of court is domus mansionalis within the statute
of 39 Eliz. of him who was the owner of the chamber. 2. That allho
this chamber was parcel of the Inner Temple, and other persons
were in the hall and other parts of the Inner Temple, yet no person
being in the chamber, this o tie nee was within the statute of 39 Eliz.
and so it differs from tlie case of Whitehall before-mentioned, where
the indictment was upon the statute of 5 4' 6 E. 6. 3, That in as much
as Evans was only in the chamber, and Finch entered not the cham-
ber, ^t»an.s had judgment of death, and i^/ncA had his clergy. '
And the like law had been upon the statute of 5 c^* 6 E. 6. as is
before declared, for these statutes only exclude the parties, that actu-
ally take out of the dwelling-house, not those that are present and
asscnters,(7;z) as hath been also before declared(?i) upon the statute
of 1 Jac. of stabbing.
(Z) Cro. Car. 473.
(wj) But by 3 4f 4 W. S^ M. cap. 9. clergy is taken away from all, who comfort, aid, abet,
assist, counsel, hire, or command any jJorHon feloniously to break any dwelling-liouse;
shop, or ware-house thereto belonging, and filoniously to take away any ihoncy, goods,
SfC, to the value of 5s. or upwards, allho no person be within the same.
(n) Vide antea, p. 4C8.
HISTORIA PLACITORUINI CORONiE. 528
And herein it differs from burglary and robbery, for therein all
persons, that are present, aiding, and assisting, are equally burglars or
robbers with him, that enters or aciually takes; but of this hereafter.
But this statute of 39 Eliz. takes not away the benefit of clergy,
where the offender stands mute, but only in the case of conviction by
verdict, confession, or otherwise according to the laws of the realm;
qusere of outlawry, for there the party is attaint indeed, but not found
guilty, for if he reverse the outlawry, he shall plead to the felony, (o)
And thus far for those larcinies, that relate to the dwelling-house
of any wherein clergy is excluded,
V. The next statute, that excludes from clergy, is the statute of
1 E. 6. cap. 12. and 2 Sf- 2 E. 6. cap. 33. which exclude clergy from
any person convict by verdict or confession of stealing any horse,
mare, or gelding, or wilfully standing mute.
But it takes not away clergy from accessaries 6e/bre or [529]
after.
VI. The statute of 8 Eliz. cap. 4. by which he that takes money
or goods feloniously from the person of any other, privily, without
his knowledge, is ousted of his clergy, if convict by verdict or con-
fession, or if he challenge above twenty peremptorily, or stands mute,
or will not directly answer, or be outlawed.
Upon this statute these things are observable: 1. It doth not alter
the nature of the felony, and therefore, if what he take away so be
not above the value of twelve-pence, it is only petit larcmy, as it was
before, and so differs from the case of robbery, Co. P. C. cap. 16.
p. 68. Crompt. de Pace, fol. 33. b. 2. The indictment must be pur-
suant to the statute, viz. quod felonict S^'C. clam <§' secrete a persona^
^'C. cepit, otherwise the offender hath his clergy. 3. It doth not oust
accessaries of their clergy, nor it seems doth it oust any of his clergy
but him, that actually picks the pocket, and not those that are present,
aiding and assisting, upon the reason of Evan's case before, for it
shall be taken literally.
By an act of this parliament, viz. * * * (^)
See table of the principal matters in Foster, Tit. Clergy.
CHAPTER XLV. [530]
CONCERNING PETIT LARCINY.
Petit larciny is the felonious stealing of money or goods not above
the value of twelve-pence without robbery, for altho that by some
opinions the value of twelve-pence make grand larciny, 22 ^ssiz. 39.
(o) But now by 3 &; 4 W. Sf M. cap. 9. clergy is expressly taken away in case of out-
lawry, or of stinding mute, <^c.
(/)) This was left unfinislied by our author, but I suppose the statute here meant is
22 Cflrf 2. cap. 5. which "All who shall feloniously steal woollen manufactures from the
tenters, or shall embezzle the king-'s naval stores, are excluded from clergy.
As to subsequent statutes, which take away clergy from larciny in dwelling-houses,
vide postea subjine cap. 48.
VOL. I. — 47
530 HISTORIA PLACITORUM CORONA.
per Thorp, yet the law is settled, that it must exceed twelve-pence
to make grand larciny. West 1. cap. \5.{a) 8 E. 2. Coron. 404. [1]
The judgment in case of petit larciny is not loss of life, but only
to be whipt, or some such corporal punishment less than death, and
yet it is felony, and upon conviction thereof the offender Ibseth his
goods, for the indictment xnusfelonice. 27 H. 8. 22.
A party indicted of petit larciny and acquitted, yet if it be found,
he fled for it, forfeits his goods, as in case of grand larciny. • 8 E. 2.
Coron. 406. Sfamf. P. C.p. 184. a.
But in case of petit larciny there can be no accessaries neither be-
fore nor after. P. 9. Jac. 12 Co. Rep. 81.
If two or more be indicted of stealing goods above the value of
twelve-pence, tho in law the felonies are several, j'-et it is grand lar-
ciny in both. 8 E. 2. Coron. 404.
■ But if upon the evidence it appears, that J2. stole twelve-pence at
one time, and B. twelve-pence at another time, so that the acts them-
selves were several at several times, tho they were the goods of the
same person, this is petit larciny in each, and not grand larciny in
either.
\i Jl. be indicted of larciny of goods to the value of five shillings,
yet the petit jury may upon the trial find it to be but of the value of
twelve-pence, or under, and so petit larciny. 41 E. 3. Coron. 451.
18 .assiz. 14. Starnf. P. C.p. 24, b.
If j3. steal goods of ^. to the value of six-pence, and at
fSSl] another time to the value of eight-pence, so that all put to-
gether exceed the value of twelve-pence, tho none apart
amount to twelve-pence, yet this is held grand larciny, if he be in-
dicted of them altogether, [2] Stamf. P. C. p. 24. collected from the
book of 8 E. 2. Coron. 415. Daii. cap. lOl. p. 259. (b)
But if the goods be stolen at several times from several persons,
and each a-part under value, as from ^. four-pence, from B. six-
pence, from C. ten-pence, these are several petit larcinies, and tho
contained in the same indictment make not grand larciny.
But it seems to me, that if at the same time he steals goods of »/S.
of the value of six-pence, goods o( B. of the value of six-pence, and
goods of C. to the value of six-pence, being perchance in one bundle,
or upon a table, or in one shop, this is grand larciny, because it was
one entire felony done at the same time, tho the persons had several
properties, and therefore, if in one indictment, they make grand
larciny.[3] ' «
(a) 2 Co. Instit. 190. (b) New Edit. cap. 154. p. 494.
[1] Tliis distinction between grand and petit larceny is now aboHshed by 7 & 8' Geo.
IV. c. 29, 8. 2. See liyland's note to 4 BL Com. 229. i'dth Land. Ed. 1836.
[2] Birdseye's case, 4 Carr. Sf Paij. 38G. Jones's case, Id. 217. 2 East's P. C. 740,
[3] It is manifest that the defendant micrht have three different defences as to the
taking of tlic property of ihrcc owners. Wi)uld not a sing-lc count, which compelled a
defondiint to make thcce distinct dflcnccs, as to three distinct pieces of property of three
different owners, be bad for duplicity. See Com. v. Andrews, 2 Mass. R. 409.
HISTORIA PLACITORUM CORONiE. 531
If A. steal cJam (§« secretl out of the pocket of B. twelve-pence,
tho the statute of 8 Eliz. take away clergy from a pick-pocket, yet
it is but petit larciny ; quod vide supra p. 529.
And so if a man could possibly steal a horse of the value of
twelve-pence only, or under, or break a house in the day-time, and
steal goods only of the value of twelve-pence, the owner, his wife or
children being in the house, and not put in fear, this will be but petit
larciny, notwithstanding the statute of 5 4* Q E. 6. take away clergy,
for that statute altered not the nature of the offense, but takes away
qlergy, where clergy was before, namely where the offense was capi-
tal, as in case of grand larciny.
But if they were put in fear, then it would be robbery, how small
soever the value were, and so could not sink into the nature of petit
larciny 5 but of this in the next chapter.[4]
CHAPTER XLVI. [532]
OF ROBBERY.
Robbery is the felonious and violent taking of any money or goods
from the person of another, putting him in fear, be the value thereof
above or under one shilling.
In this case it is to be considered, 1. What is a felonious taking
[4] In Nkvv York, under the statutes, petit larceny is not a felony. Carpenter v.
Nixon, 5 HiWs Rep. 520. Ward v. The People, 3 HiWs Rep. 395. In it there are no
accessaries, but all concerned in the commission of the offence are principals. Id. 2 N. Y.
Rev. St. 690.
To constitute petit larceny the sum stolen must be under $25. Id.
In Pennsylvania, twenty shillings under the Act o£ April, 1790. Stroud's Purd, 956.
eik ed. ; 1052. ith ed.
In New Jersey, the same as in New York. Rev. Stat, of 1847, jj. 266.
In Virginia, to constitute petit larceny, the sum must be under $10. Sup, Rev. Code,
298. sue.
In South Carolina, in the case of The State v. Wood, 1 S. C. Rep. 29. it was ruled
that on an indictment for grand Lirceny the jury may find petit larceny. Chase, J, said
"he tiad been informed by his brethren thai the Abjection of the indictment being for
grand larceny, the verdict for petit larceny was unauthorized, had been often overruled ;"
and cited 2 East's P. C. 778. where it is so laid down.
In Tennessee, an indictment in the county court for petit larceny in stealing goods
of greater value than twelve-pence should conclude against the form of the statute. The
second section of the Act of 1807 has changed the nature of this offence in this as in
some other States, viz. that petit larceny shall consist in stealing property under the
v^lue of $10. At common law it consisted of stealing property under the value of
iwclvc-pencc, as stated in Hale's text. See The State v. Humphries, 1 Overton's (Tenn.)
R. 107.
532 HISTORIA PLACITORUM CORONA.
from the person. [1] 2. Who shall be said a felonious taker from the
person of a man. 3. What violence or putting in fear is requisite to
make up robbery. 4. In what cases such a robber is admissible to
his clergy.
As to the first.
I. There must be in case of robbery (as also in all cases of larciny^
something feloniously taken, for altho antiently an assault to the
intent to rob, or an attempt to rob was reputed felony, voluntas
reputabatur pro facto, 25 E. 3. 42, 13 H. '\. 7. per Gascoigne
27 Assiz. 38. yet the law is held otherwise at this day,(«) and for a
long time since the time of Edward III. and therefore if »^. lie in
wait to rob B, and assault him to that purpose, and require him to'
deliver his purse, yet if de facto he hath taken nothing from him,
this is not felony, but only a misdemeanor, lor which he is punisha-
ble by fine and imprisonment. 9 E. 4. 26. b. Stamf. P.C.p. 27. b.
Co. P. C. p. 68.
There is a double kind of taking, viz. a taking in law, and a taking
in fact.
If thieves come to rob ,/?. and finding little about him enforce him
by menace of death to swear upon a book to fetch them a greater
sum, which he doth accordingly, this is a taking by robbery, yet he
■was not in conscience bound by such compelled oath, for the fear
continued, tho the oath bound him not, and in that case the in-
(a) Plowd. Com. 259. b.
[1] The takinjif must be from the person or in the presence of the prosecutor. U. S. v.
Jones, 3 Wash. R. 209. Com. v. Snelling, 4 Binn. R. 379. Rex v. Hamilton, 8 Car,
4- ^. 49.
Where it appeared 'that the prosecutor was with a third person, who had the prosecu-
tor's bundle, and who, when the prosecutor was forcibly attacked by the defendant,
dropped the bundle and ran to assist the prosecutor, when the prisoner took up the bun-
die and ran off, a learned judge is said to have doubted whether the offence was robbery.
Rex V. Fallows, 5 Car. &; P. 501.
It is essential that the property should be taken against the will of the party robbed.
Rex V. McDaniel, Foster Dis. 121.
The goods must also appear to have been taken animo furandi, as in cases of larceny.
Archb. Cr. P. 245.
There must also be an actual taking and carrying away. But it is immaterial
whether the taking were by force or upon delivery; and if by delivery, it is also imma-
terial whether the robber compelled the prosecutor to it, by a direct demand in tlic ordi-
dinary way or upon any colourable pretence. A carrying away must also be proved;
and where one meeting a man carrying a bed, told him to lay it down or he would shoot
him, and the man accordingly laid down the bed, but the robber, before he could take it
up so as to remove it from the place where it lay, was apprehended : the judges held that
the robbery was not complete. Rex v. Fnrrell, 1 Leach, C. C. 362. Rex v. Lapier, Id.
320. Fast. Dis. 128. Rex v. Mason, R Sf Ry. 419. Rex v. Davies, 2 EasVs l\ C. 709.
Rex v. Hall, 3 Car. cV P. 409. Rex v. Mncauky, 1 Leach, C. C. 287. Rex v. Baker, Id.
290. Rex V. Stewart, 2 EasCs P. C. 702. Rex v. Homes, Id. 703,* Rex v. Gosnil,
I C.Sf P. 304.
* It was held in the case of Com. v. Humphries,! Mass. R. 242. that an indictrnent
was good at common law which alleged the stealing, &c. by force and violence, but
omitted the averment that the party robbed was put in fear.
HISTORIA PLACITORUM CORONA. 533
dictment need not be special, for that evidence will maintain a gene-
ral indictment of robbery, 44 E. 3. 14. b. 4 H. 4. 2. a. Co. P. C. p. 68.
Dall. cap. 100. p. 257.(6) who saith it was so adjudged also in P.
36 Eliz.
If »,'?. assaults B. and bids him deliver his purse, and B. delivers it
accordingly, this is a taking, and so it is if B. refuse, and then JJ.
prays him to give or lend him money, which B. doth accordingly,
this is robbery, for B. doth it under the same fear, Dal. cap. 100.
-44 Eliz. Cromp. 34. b. so it is if B. throw his purse or cloak in a
bush, and A. takes it up, and carries it away; so if B. flying from
the thief lets fall his hat, and the thief take it and carry it away, for
all is the effect of the same fear. Dalt. iibi supra.
So if A. without drawing his weapon requires B. to deliver his
purse, who doth deliver it, and ^. finding but two shillings in it
gives it him again, this is a taking by robbery. 20 Eliz. Crompt. 34.
Dalt. ubi supra.
If ^. have his purse tied to his girdle, B. assaults him to rob him,
and in struggling the girdle breaks, and the purse falls to the groiuid,
this is no robbery, because no taking ; but if B. take up the purse,
or if B. had the purse in his hand, and then the girdle breaks, and
striving lets the purse fall to the ground, and never takes it up again,
this is a taking and robbery. Co. P. C. p. 69. Dalt. cap. 100. Crompt.
fol. 35.
It is not always necessary, that in robbery there should be strictly
a taking from the person, but it snfRceth if it be in his presence, as
appears by some of the foriner instances, in case it be done with a
putting in fear : as where a carrier drives his pack-horses, and the
thief takes his horse, or cuts his pack, and takes away the goods: so
if a thief comes into the presence o{ Jl. and with violence, and putting
^. in fear, drives away his horse, cattle, or sheep. Dalt. ubi supra.
Stamf. P. C. p. 27. a. 2 East's P. C. 556.
II. Who shall be said a person robbing or taking.
If several persons come to rob a man, and they are all present, and
one only actually takes the money, this is robbery in all.
Piidsey and two others, viz. Jl. and B. assault C. to rob
him in the highway, but C. escapes by flight, and as they [534]]
were assaulting him Jl. rides from Pudsey and B. and as-
saults D. out of the view of Pudsey and B. and takes from him a
dagger by robbery, and came back to Pudsey and B. and for this
Pudsey was indicted and convict of robbery, tho he assented not to
the robbery of Z). neither was it done in his view, because they were
all three assembled to commit a robbery, and this taking of the dag-
ger was in the mean time. 28 Eliz. B. R. Crompt. 34.
And so it is if ^,i. B. and C. come to commit a robbery, and j1.
stands centinel at the hedge-corner to watch if any come, and B. and
C. commit the robbery, tho *,i. was not actually present, nor within
view, but at a distance from them; and the like in burglary. \\ H.
4. 13. Co. P. C.p. 64.
(&) iVew Edit. cap. 153. p. 492.
534 HISTORIA PLACITORUM CORONA.
III. What shall be said a putting in fear, or violent taking.[2]
Without putting in fear or violence it is not robbery, but only lar-
Giny,and the indictment must run, quod vi S,- armisapud B. in regid
via ibidem, S^-c. AOs. in pecuniis nurneralis fclonice S,- violentlr cepit
[2] Any threat calculated to produce terror is sufficient to consummate the offence.
Thus if a man takes another's cliild and threatens to des^troy him unless the other give
him money, this is robbery. Rex v. Reeve, 2 East, P. C. 735. Rex v. Donally, Id. 718.
So where the defendant, at the head of a mob, came to the prosecutor's house and
demanded money, threatening to destroy the house unless the money were given; the
prosecutor thereupon "gave him 5s., but he insisted on more, and the prosecutor being
terrified gave him 5s. more; the defendant and the mob took bread, cheese, and cider
from the prosecutor's house without his permission and departed: this was holden to be
a robbery. Rex v. Lemynons, 2 East, P. C. 731. Rex v. Brown, Id. 731. Rex v. Astley^
Id. 712. Rex v. Winkworth, 4 Carr Sf P. 444. '
It makes no matter wiiat pretences were employed to induce the owner to surrender
possession, if he was put in bodily fear. Merriman v. Chippenham, 2 East, P. C. 709.
4 Blac. Comm. 242. Rex v. Taplen, 2 East, P. C. 712.
If a robber take a purse of money from a person, and restore it to him immediately,
saying, "if you value your purse, take it back, and give me the contents," but is appre-
hended before the money is delivered to him, yet the crime is completed. Rex v. Peat,
1 Leach, C. C. 228. 2 East, P. C. 557. Rex v. Thompson, R. Sf M. 78.
Taking money from a woman at the time of an attempt to commit a rape, amounts to
jobbery, although there was no demand of money made by the prisoner, and it was
clearly his original intent only to commit a rape. Rex v. Bhichham, 2 East, P. C. 711.
So to take a man by the cravat and squeeze him against a wall, and in the mean time
abstract his watch from his fob without his knowledge, is a robbery, though the plaintiff
was not afraid, nor aware of the robber's intention. Com. v. Snelling, 4 Binn. R. 379.
Where money was given to one of the mob during the riots in London in 1780, upon
a knocking at the prosecutor's door in a menacing manner: held that it was robbery.
Rex V. Taplin, 2 East, P. C. 712.
Where persons, under pretence of an auction, got a woman into a house and compelled
her, by threats of carrying her before a magistrate and to prison for not paying for a lot
pretended to have been bid for by iier, to pay them one shilling through fear of prison,
and for the purpose of obtaining her liberation, but without any fear of any other personal
violence: Held, not robbery, but only duress. Rex v. Wood, 2 East, P. C. 732.
A woman went into a mock auction shop, and it was pretended that she had bid for
certain articles, and the prisoner threatened to take her to Bow-street and have her sent
to Newgate, unless she paid earnest for the articles, to avoid which, she paid one shil-
ling: Held, that this was not sufficient restraint to make this a robbery. Rex v. Newton,
Car. C. L. 285.
If the property be not taken by violence, nor parted with through fear, it is no rob-
bery, though there were sufficient legal and reasonable ground for fear, as upon a threat
to charge one with an unnatural crime. Rex v. Rcane, 2 East, P. C. 734. 2 Leach,
C. C. 616.
The crime of robbery may be committed by obtaining money from a man, by threat-
ening to charge him with having been guilty of sodomitical practices. Rex v. Jones,
1 Leach, C. C. 139.
This has, in many cases, been holden to be robbery, see Rex v. Hichnan, post.; Rex v.
-Egerton, post, even where it appeiired that the prosecutor parted with his money merely
through fear of losing his character or employment by such imputation. E.ttorting
money by this or like means has been made a felony in some Stales by statute. See
JWass. Rev. Stat.c. 125, sect. 17; N. Y. Rev. Stat. P. IV. c. 1,3, 5,sec<. 58.
It is equally a robbery to extort money from a person by threatening to accuse him
of an unnatural crifne, whether the party so threatened has been guilty of such crime or
not. Rex v. Gardner, 1 Car. Sf I'. 479.
If a man obtain property from another by accusing him of having been gfiilty of an
unnatural crime, it will amount to robbery, although the party was under no apprehen-
sion of personal danger, and felt no other fear than that of losing his character. Rex. v.
Hickman, 1 Leach, C. C. 278 ; 2 East, P. C. 728.
To constitute robbery, by taking money from another upon a threat of charging him
HISTORIA PLACITORUM CORONA. 534
a persond; and therefore if the word violenter be omitted in the in-
dictment, or not proved upon the evidence, tho it were in iiltd via
regid Sf felonicc cepit a persond, it is but larciny, and the offender
shall have his clergy. Dy. 224. b. H. 17 Jac. in B. R.{c). Harman
(c) 3 Rol. Rep. 154.
with an unnatural crime, the money must be taken immediately upon the threat made,
and not alter the parties have separated and there has been time for the prosecutor to
deliberate and' procure assistance, and especially after he had consulted a friend who
was even present at the time when the money was paid, though the prosecutor parted
with his money fr^fn fear of losing his character. Rex v. Jackson, 1 East, F. C.
Add. xxi; 1 Leach, C. C. 193 n. ; 2 Leach, C. C. 618 n; and see Rex v. Cannon,
R. Sf R. C. C. 146; 2 Russ. C. Sf M. 87.
Parting with property upon charge of an unnatural crime, will not make the taking
a robbery, if it is parted with not from the fear of loss of character, but for the purpose
of prosecuting. Rex v. Fuller, R. Sf R. C. C. 408; 2 Russ. C. Sf. M. 88.
■ Where money was obtained by calling a man a sodomite and threatening him, but
the money was parted with by the prosecutor not so much from fear of losing his
character, as from fear of losing his place: Held, by a majority of the judges, that it
was sufficient to constitute a robbery. Rex v. Elmstead, 2 liuss. C. Sf M. 86.
The parting with money or goods through fear of loss of character and service, upon
a charge of sodomitical practices, is sufficient to constitute robbery, although the party
has no fear of being taken into custody, nor any dread of punishment. Rex v. Eger-
ton, R. Sf R. C. C. 375; 2 Russ. C. Sf M. 87. See the cases cited and discussed in
SDeac.C.L. 1136.
Obtaining money from a woman by threatening to accuse her husband of an indecent
assault, is not robbing. Rex v. Edwards, 5 Car. Sf P. 518, S. C. nora. Rex. v. Edward,
1 .V. Sf Rob. 257.
If a bailiff handcuff a prisoner, under pretence of carrying him to prison with greater
safety, and by means of this violence extort money, he is guilty of robbery. Rex v.
Gascoigne, 1 Leach, C. C.2b0; 2 East, P. C. 709.
If a gang of poachers attack a gamekeeper and leave him senseless on the ground, and
one of them return and steal his money, &c.: — Held, that one only can be convicted of
the robbery, as it was not in pursuance of any common intent. Rex v. Hawkins, 3 Car.
Sf P. 392.
Sed aliter, if a number had associated themselves together, for the purpose of commit-
ting a robbery, altiiough one alone had perpetrated the act, as all would have been con-
structively present. State v. Heyward, 2 N. Sf M. 312.
A. had set wires in which game was caught : B. a gamekeeper found them, and took
them, with the game cauglit in them, for the use of the lord of the manor. A. demanded
them with menaces, and B. gave them up. The jury found that A. acted under a bona
fide impression that the wires and game were his property: — Held, that it was no rob-
bery. Rex V. Hall, 3 Car. Sf P. 409.
A. was attacked by robbers, who, after using very great violence towards him, took
from him a piece of paper, on which was written a memorandum respecting some money
that a person owed him: — Held, robbery. Rex v. Bingly, 5 Car. Sf P. 602.
Snatching an article from a man will constitute robbery, if it is so attached to his
person or clothes as to afford resistance. Rex v. Mason, R. Sf R. C. C. 419. 2 Russ. C.
Sf M. 69.
To snatch a diamond pin from the head-dress of a lady, with such force as to remove
it with part of the hair, from the place in which it was fixed, is a sufficient violence to
constitute robbery. Rex v. Moore, 1 Leach, C. C. 335.
To constitute the crime of highway robbery, the force used must be force with intent
to overpower the party, and prevent iiis resistance ; and if the force used is not with
that intent, but only to get possession of the property of the party attacked, it is not
highway robbery- Rex v. Gnosil. 1 Car. Sf P. 504.
Snatching property from the hand of another, is not sufficient force to constitute high-
way robbery. Rex v. Baker, 1 Leach, C. C. 290. 2 East, P. C. 702,
Indictment. — A servant was sent out by his master to receive money from his master's
customers, and, having received the money, he was robbed of it on his way home. Sem-
534 HISTORI A PLACITORUM CORONA.
was indicted of the robbery of Halfpenny in the highway; and upon
the evidence it appeared, that Harmun was upon his horse, and
required Halfpenny to open a gap for him to go out, Halfpenny
going up the bank to open the gap, Harman came by him, and slipt
ble, that an indictment for this robbery, in which the money was laid to be the property
of his master, could not be supported, as the money had never been in the possession of
the master. Reg. v. Ruddick, 8 Car. S( P. 237.
And when in such a case, the objection was taken during the trial, the judge directed
the jury to be discharged, and a new indictment to be sent to the grand jury, containing
a count, laying the property in the servant. lb,
A. and B. were indicted for the offence of robbery. The jury foTind that A. took the
property of the prosecutor from him by violence, and that jB. was present during part of
the time, and that he was a party with A. to a design to bring the prosecutor to the place
where he was robbed by A, and to obtain property from him on a false charge of an
unnatural crime, but that he was not aiding or assisting in, or privy to, the taking of the
property from the prosecutor, by violence: Held, by all the judges, that in order to con-
vict jB. the indictment should have been framed on the statute 7 Will. IV. Sf I Vict.c. 87.
S. 4., and that he could not, since the passing of the statute, under the circumstances of
this case, be convicted on an indictment charging the offence of robbery. Reg. v. Taun-
ton, 9 Car. Sf P. 309. 2 M. C. C. R. 118.
An indictment for robbery need not have the word '• violently," but it must appear
upon the whole statement that violence was used. Rex v. Smith, 2 East, P. C. 784.
If a prosecutor declare, on an indictment of robbery, tiiat he parted with his property
without any fear of violence to his person or injury to his character, the prisoner cannot
be convicted. Rex v. Reane, 2 Leach, C. C. 616. 2 East, P. C. 734. Sed vide, Com. v.
Snelling, 4 Binn. R. 379.
An indictment for a robbery, on an unmarried woman, in her maiden name, is good,
although she marry before the indictment is found. Rex v. Turner, 1 Leach, C. C. 536.
An indictment for a highway robbery must state, that the assault was feloniously
made with an offensive weapon. Rex v. Pelseyman, 2 Leach, C. C. 563. 2 East, P. C. 783.
Evidence. — On an indictment for robbery, the declaration in articulo mortis, of the
party robbed, is not admissible in evidence. Rex v. Lloyd, 4 Car. Sf P. 233. 1 Greenl. on
Ev. § 156.
A. and B. were riding in a gig together, were robbed at the same time, A. of his
money, B. of his watch, and violence used towards both. There was an indictment for
the robbing of -4. and another indictment for the robbing of B. Held, that on the trial of
the first indictment, evidence might be given of the fact, of the loss of the watch by B.,
and that it was found on one of the prisoners, but that no evidence ought to be given of
any violence offered to B. by the robbers. Rex v. Rooney, 7 Car. Sf P. 517.
Massachusetts — Robbery was always punished as a capital offence in this State,
until the passing of the Statute of 1804, c. 143, by which the punishment was reduced
to hard labour for life. This statute remained in force until the passing of Stat. 1818,
c. 124, when robbery, if committed under certain circumstances of aggravation, was
again punished with death.
The first case that occurred after the passing of the Statute of 1818, c. 124, was
77(6 Commonwealth v. Michael Martin, 17 Mass. Rep. 539, in which it was decided by
the unanimous opinion of the wiiole court, that to make robbery a capital offence within
the first section of the statute, it is sufficient if the party be armed with a dangerous
weapon with intent to kilt or maim the person assaulted, in case such killing or maim-
ing be necessary to his purpose of robbing, and that he have the power of executing
such intent. The prisoner wns indicted upon the first clause of the first section of tlie
statute tor the robbery of John Bray, "being then and there at the time of committing
the assault aforesaid, in manner and form aforesaid, armed with a certain dangerous
weapon, called a pistol, with intent him the said John Bray then and there to kill and
main." The defence set up was, that to constitute the crime of robbery a capital
offence within the statute, it must be proved that there was an absolute intent to kill or
maim the party robbed; at all events whether the robbery could be accomplished withr
out killing or maiming, or not; and that in the present case the fact of the prisoner's'
having left the party robbed, without killing or maiming him, or making an actual
HISTORIA PLACITORUM CORONA. 534
his hand into his pocket, and took out his purse; Halfpenny not
suspecting the taking of his purse, until turning his eye he saw it in
Har'mayi^s hand, and then he demanded it, Harmun answered him,
Villain if thou speakest of thy purse, I will pluck thy house over
■thine ears, and drive thee out of the country, as I did John Somers,
and then went away with his purse ; and because he took it not with
such violence, as put Halfpenny in fear, it was ruled to be but
stealth, and not robbery, for the words of menace were used
after the taking of the purse, wherefore he was found guilty [ 535 ]
only of larciny, and had his clergy. (d)
IV. As to the point of clergy in robbery. [3]
The statute of 23 H. 8. cap. l.(e) and 5 S,^ 6 E. 6. cap. 9. do not
oust robbery of. clergy in all cases, but only in two, viz. when the
robbery is committed in a mansion-house, the owner, his wife, chil-
dren or servants being in the house and put m fear,(/) or when
committed in or near the highway.
(d) But it should seem, that this was a private stealinor from the person of another,
and therefore, if above the value of twelve-pence, would have been ousted of clergy by
8 Eliz. cap. 4. if the indictment had been laid pursuant to that statute.
(e) This statute, and that of 25 H. 8. cap. 3. ousts clergy only in cases of conviction,
standitig mute, not directly answering, or challenging peremptorily above the number of
twenty, but does not extend to the case of an outlawry, but this seems to be includedin
the word attainted in 1 E- 6. cap. 12. however it is expressly provided for by 3 ^ 4 W.
Sf M. cap. 9.
(/) Being put in fear is necessary by the 23 H. cap. 1. (and also by 1 E. 6. cap. 12.
which perhaps is the statute intended by our author) but by 5 (^ 6 £. 6. cap. 9. all that is
requisite is, that the owner, Sfc. be in the house, tho not put in fear, for the expression
of that statute is, the owner, Sfc. being in the house, whether sleeping or waking.
attempt to do it, proved that there was no such intent, as by the statute constituted
an essential ingredient in the capital offence. This construction of the statute was not
adopted by the court; but they instructed the jury, that if they were satisfied from the
evidence that the prisoner armed himself with a loaded pistol with intent to kill of
maim the party whom he should rob, if such killing or maiming were necessary for his
purpose of robbing; and that when he assaulted and robbed Major Bray, he had the
power of executing such intent, and meant to do it, if he could not otherwise rob him,
the offence was capital according to the statute; and they accordingly found the prisoner
guilty. See the opinion of the court at large, delivered by Parker, C. J. in which the
above construction of the statute is unanswerably maintained. The Massachusetts
Statutes will be found in Rev. St. oh. 125, and Supp. 127.
In Pennsylvania. — To constitute robbery there must be a felonious taking of pro-
perty from the person of another by force, either actual or constructive; but if force be
used, it is not essential that the prosecutor should be either aware or afraid of the taking.
So decided, upon special verdict, in the case of The Commonwealth v. Snelling, before
cited, in which case it was observed, among other things, by TUghman, C. J. "If a man
is knocked down and rendered senseless, and in that situation his money is taken withr
out his knowledge, it shall not avail the thief to say that it was not taken against the
consent of the man whom he had rendered incapable of exercising the faculty of voli-
tion." " Fear is not an essential ingredient of robbery; force is sufficient." See Com-
monwealth v. Humphries, 7 Mass. Rep. 242.
To constitute the crime of robbery, it is not necessary that tlie taking should be from
the person of the owner, it is sufficient if it be done in the presence of the owner, as if
by intimidation he is compelled to open his desk or throw down his purse, and then the
money is taken in his presence. Wharton^s Digest, 151; U. States v. Jones, C. C.
April, 1819, cited by Wharton from MS. Report, (3 Wash. C. C. Rep. 209, S. C.) For
tke Lenn, Stats, see Stroud's Purd. *^Tit, Robbery and Larceny.^'
[3] See note ante, ch. 44. p. 517,
535 HISTORIA PLACITORUM CORONiE.
And therefore Trin. 38 H. 8. Moore, n. 16. p. 5. A man indicted
of robbery in quddam via regid pedestri ducenf de London ad
Islington, and accordingly fonnd gnilty, had his clergy, for the words
of the statute are for rubbery in or near the highway he shall be
ousted of his clergy, and therefore the indictment and conviction
must be of a robbery in vel prope. altatn viam regiam, and it is not
sufficient to say only via regid or via regid pedestri.
For where any person is to be ousted of liis clergy by virtue of any
act of parliament, two things are always requisite. 1. Tliat the in-
dictment bring the fact within the statute, but need not conclude,
contra formam statuti.
2. That the evidence and finding of the jury likewise bring the
case wiihin the statute, otherwise the prisoner is to have his clergy.
But an indictment of a robbery in vel prope altam viam regiam,
tho in the disjunctive is usual at Newgate, for if it be either in or
near it, tho an indictment ought to be certain, yet this is not the sub-
stance of the indictment, nor that which makes the crime, but only to
ascertain the court as to the point of clergy to serve the statute.
A robbery is committed upon the Thames in a ship there
[ 536 ] lying at anchor below the bridge, on that side of the river
which is in Middlesex ; for this robbery Hyde and others
were indicted as of a robbery done in vel prope attain viamregiam,
and were ousted of their clergy, for the Thames is in truth alta via
regia the king's high stream; and if it were not, yet it is not far off
from it, and the statute says near not next.
By the statute of 25 H. 8. cap. 2.{g) clergy is ousted upon ex-
amination, if the original offense were committed in another county,
and excluded from clergy by 23 H.Q. cap. Land that statute extends
to robbery in a mansion-house, or in or near the highway.
ji. robs B. on the highway in the county of C. of goods to the
value only of twelve-pence, and carries them into the county of Z). it
is certain, that this is larciny in the county of D. as well as in the
county of C. but it is only robbery in the county of C. where the first
taking was, and for robbery he cannot be indicted or appeald in the
county of D. but only in the county of C. but he may be indicted of
larciny in the county of Z>. and it is certain, though the robbery were
but of the value of one penny, yet if./?, were indicted thereof in the
county of C. he should have had judgment of death, and been ex-
cluded from clergy.
Yet if A. be indicted of larciny in the county of Z). and the jury
find the value to be only twelve-pence, he shall only have the judg-
ment of petit larciny, and not suffer death, as he should have done,
if he had been indicted of robbery in the county of C. altho it appear
upon examination upon the trial in the county of D. that it was a
robbery; the like law is, if it had been a robbery in a dwelling-house
wiihin the statute of 23 //. 8. because it can be no more than petit
(ff) This statute was in effect repealed by 1 E. 6. cap. 12. but is revived by 5 ^f 6. E.
6,ca/j, 10.
HISTORIA PLACITORUM CORON.^. 536
larciny in the county of Z>. it being found but of the vakie of twelve-
pence, and accordingly resolved by the opinion of all the justices,
31 Eliz. Moore, n. 139. pag. 550. for the statute of 25 H. 8. extended
to oust them of clergy, wliere clergy is demandable; but the
jury finding the value to be but twelve-pence, or under, no [ 537 ]
clergy is demandable, because petit larciny, but the party is
to be whipt only.
It hath been before observed cap. 44. that upon the statute of 29.
' Eiiz. cap. 15..tho ^. and B. be both present and consenting to the
breaking and'entering of a house to rob, and „^. only enters into the
house, and B. stands by, ^. shall be ousted of his clergy, but B.
shall have his clergy,(A) because ..^. only entered the house, and the
words of the statute extend only to him that actually enters the house;
yet if./?, and B. be present, and consenting to a robbery in or near
the highway, or to a burglary, tho ^d. only actually commits the rob-
bery, or actually breaks and enters the house, and B. perchance be
watching at another place near, or be about a robbery hard by,
which he effects not, yet they are both robbers or burglars, and both
shall be ousted of their clergy, as in Pudsei/'s case: and the reason of
the difference is, because in this case both are robbers and burglars,
but in the former case both steal not in the house, but only ^. and
that statute binds up the exclusion of the clergy to stealing in the
house._
Anno. 1672. at Newgate, Hyde and A. B. C. and D. conclude to
ride out to rob, and accordingly they rode out; but at Hounslow D.
parted from the company, and rode away to Colbrook; Hyde, Jl. B.
gind C. rode towards £^// a ?72, and about three miles from Hounslow,
Hyde, A. and B. assulted a man; but before he was robbed C. see-
ing another man coming at a distance, before the assault, rode up
to him about a bow-shot or more from the rest, intending either to
rob him, or to prevent his coming to assist, and in his absence Hyde,
Jl. and B. robbed the first man of divers silk stockings, and then rode
back to C. and they all went to Londo7i,and there divided the spoil :
it was ruled upon good advice, 1. That I), was not guilty of the rob-
bery, tho he rode out with them upon the same design, because he
left them at Hoiinsloiu, and fell not in with them, it may be he
repented of the design, but at least he pursued it not. 2. That C. tho
he was not actually present at the robbery, nor, as I remember, at
the assault, but rode back to secure his company, was guilty
as well as Hyde, A. and B. and thereupon C. as well as [ 538 ]
Hyde, J2. and B. had judgment of death, and was excluded
of clergy, the indictment being for robbery on the highway, accord-
ing to the resolution in Pndsey^s case, for they were all robbers on
the highway.
(h) But now by llie statute of 3 ^ 4 W. S^ M. cap. 9. he would not have his clergy, iqt
hy that statute clergy is taken away from all aiders, abetters, or astisters, ' .
53S HISTORIA PLACITORUM CORONiE.
CHAPTER XLVII.
CONCERNING RESTITUTION OF GOODS STOLEN, AND THE CONFIS<fATION
OF GOODS OMITTED IN THE INDICTMENT OR APPEAL,
Altho this title Tnay seem to come more properly to be examined,
when we come to consider of the proceedings and judgment in crimi-
nal causes, yet in as much as it properly relates to larciny and rob-
bery of goods, it will not be amiss to take it up here as an appendix
to the four former chapters touching larciny and robbery.
There are three means of restitution of goods for the party, from
whom they were stolen, viz. 1. By appeal of robbery or larciiiy,[l]
3. By the statute of 21 H. 8. cap. 11. [2] And 3. By course of com-
mon law.
I. Upon an appeal of robbery or larciny, if the party were convict
thereupon, restitution of the goods contained in the appeal was to be
made to the appellant, for it is one of the ends of that suit.
And hence it is, that if in an appeal of felony or robbery the appel-
lant omit any of the goods stolen from him, they are forfeit, and con-
fiscate to the king, 45 E. 3. Cor on. 100.
And so it is, if he brings an appeal of robbery or larciny,
r 539] and it appears upon the trial, that indeed the goods were
the plaintiff's; but yet the appellee came to the goods not
by felony, but by finding or bailment or the like without felony, the
plaintiff forfeits these goods to the king for his false appeal. 3 E. 3.
Coron. 367.
But if the defendant in the appeal be convicted, he shall not only-
have judgment of death, but the plaintiff shall have a restitution of
his goods.
If./?, steals the goods of B. C. and D. severally, and B. brings his
appeal, and convicts the offender, yet before judgment C. and D.
may pursue their appeals, and he shall be arraigned also upon their
several appeals. 4 i?. 4. 11 «.
So if judgment be given against Ji. upon the appeal of B. yet if
the appeal of C. were begun before the attainder, ,^. shall be
arraigned upon the appeal of C. because he is to have restitution of
his goods thereby, yet by the book of 7 H. 4. 31. and 12 E. 2.
Coron. 379. it seems, that the second trial at the suit of C. is but in
nature of an iuqncst of office to entitle him to the restitution of his
goods, because as to the judgment of life he is already in law a dead
person, and the book of 4 E. 4. II. (a) speaks not in case of a judg-
ment, but only of a conviction or finding guilty ; qicsere, vide 44
(«) That case was of a second appeal brought before the party had pleaded to the
first.
[1] This no longer exists. Sec 59 Geo. III. c. 4G.
[2] Now aincniled by 7 «fc 8 Geo. 1V.C.2U. § 58.; andsco 7 Car. Sf P. 481. 640.
HISTORIA PLACITORUM CORONA. 539
E. 3. 44. yet vide Slamf. p. 66 and 107. it seems the attainder is no
bar to C.
But certain it is, that if ./?. be attaint at the suit of B. and then
and not before C. commences his appeal, Ji. shall not be arraigned
thereupon ; but if he be afterwards pardoned, then he shall be
arraigned at the suit of C. commenced after the attainder, 6 H. 4.
6. h. 10 H. 4. Coron. 227. But if the attainder were at the king's
suit for that very felony, for which C. brought his appeal after the
attainder, then it seems he shall not be put to answe? it. Stamf.
P. C.p. 106.
Now touching restitutions upon appeals, Stamf. Lib. III. cap. 10.
fol. 165. hath given us a full account, I shall follow his method partly
and summarily. 1. Where the plaintiff shall have restitution. 2.
When. 3. Of what things.
1. As to the first, where and in what cases the party
appellant shall have restitution. [ 540 ]
1. It must be upon fresh suit, and tho antiently the law
was strict herein as to the time and manner of the pursuit and appre-
hending of the felon, yet the law is now more liberal.
If the felon be taken by any others, as by the sheriff, yet if the
party robbed come within a year after, and give notice of the felony,
and enter his appeal, this is a fresh suit, if he used his diligence
shortly after the felony to have taken him. 7 H. 4. 43. b.
2. The appellant must proceed with his appeal to convict the
felon ; but yet in cases of impossibility of such conviction it is
sufficient that he used his endeavour; as if he takes the felon, and
imprison him, and he dies within the year, and before the appeal
commenced ; so if the party abjure or break prison after he is
taken, 12 E. 2. Coron. 380. so as the appeal be commenced within
the year and day, and that he made fresh suit, 26 ^ssiz. 32. or if
he challenge peremptorily above the number appointed by law,
stands mute of malice, or hath his clergy, (6) 8 H. 4. 1. or be
outlawed.
2. As to the second, when he shall have restitution.
He shall have restitution after judgment against the appellee, and
before execution made or prayed. 21 E. A. 73. b.
He shall have restitution after conviction of the principal, and
before conviction of the accessary, and after conviction of one of the
principals before conviction of the other, or tho the other be acquitted
upon his appeal. 21 E. 4. 16 a. 10 H. 4. Coron. 466.
But if A. steal severally the goods of B. and C. and he be con-
vict upon the appeal of B. yet C. shall not have restitution till he
be convict at his suit also, 4 E. 4. 11. supra, altho the felon be
convict at the suit of the appellant, yet he is not to have resti-
tution till the fresh suit be inquired, which is to be done by the
same jury that convicts the felon, if he plead to inquest,
but if he confess the felony, or stand mute, it shall be in- [ 541 ~\
(6) 4 E. 4. 19. b.
541 HISTORIA PLACITORUM CORONA.
quired by inquest taken ex officio by the judge. 1 H. 4. 5. a. 2. B: 3.
12. 3 H. 7. 12. b.
3. Of what things he is to have restitution.
If a felon waive the goods stolen without any pursuit after him,
those goods are not in law bona waiviata, nor forfeit to the king or
lord of a franchise; but if he waive them upon a pursuit of him,
then they are bonci, icaiviata, and forfeit to the king or lord of the
Hberty ; quod vide 5 Co. Rep. 109. a. Foxley^s case.
And this forfeiture is not like a stray, where tho the lord may
seize, yet the party, who is the owner, may retake them within the
year and day, but here the true owner cannot seize his own goods,
tho upon fresh suit within the year and day. 8 ^. 3. 11. a. Jivoiory
151. 3 E. 3. Cor. 162.
But yet this is not an absolute loss of the owner's goods, but
rather an expedient settled by law to drive the owner to convict
the felon by prosecuting his appeal, and therefore if he make fresh
suit, and prosecute his appeal, and the felon be thereupon convict
and attaint, and the fresh suit be inquired and found by verdict or
inquest of office, he shall have restitution of the goods so waived.
5 Co. Rep. 109. Fox ley's case, 3 E. 3. Coron. 162.
Bnt more of restitution under the next general, for it is regularly
true, that of what things the owner shall have restitution upon the
statute of 21 H. 8. he should have restitution upon a conviction in
an appeal at common law, and e converso, so that what is said upon
the statute, is applicable to restitution upon an appeal.
, II. By the statute of 21 H. 8. cap. 11. [3] it is enacted, "That if
any person do rob or take away the goods of any of the king's
subjects within this realm, and be indicted, arraigned, and found
guilty thereof, or otherwise attainted by reason of the evidence of
the party so robbed, or owner of the said money, goods or chattels,
or any other by their procurement, that then the party so robbed, or
owner, shall be restored to his money, goods or chattels, and the jus*
tices, before whom such person shall be so attainted, or
[^5423 found guilty by reason of the evidence of the party so
robbed, or owner, or by any other by their procurement,
have power to reward writs of restitution for the said money or
goods, or chattels in like manner, as tho any such felon or felons
were attainted at the suit of the party in an appeal.
This statute introduced a new law for restitution: for before this
statute there was no restitution upon an indictment, but only upon
an appeal. 22 E. 3. Coroii. 460. Samf. P. C.p. 167. a.
Tho the statute speak of the king's subjects, it extends to aliens
robbed; for tho they are not the king's natiiral-born subjects, they
are the king's subjects, when in England, by local allegiance.
If the servant be robbed of -the master's money, and the mas-
ter, or his servant by his procurement give evidence and convict
[3] Sec ante, note (2) p. 538.
HISTORIA PLACITORUM CORONA. 542
the felon, the master shall have a writ of restitution, if it appear
upon the indictment and evidence it was the master's money, for
the statute gives restitution to the party robbed or owner. Stamf,
P. C.p. 167.
If r.'l. be robbed by B. and C. and B. only is convict of the rob-
bery by the evidence o{ ^. he shall have restitution, for so he should
have had in case of an appeal.
If t/1. be robbed of an ox by B. who sells him to C. who keeps
the money in his liands, and after kills the ox, and sells the flesh, or
if the money be seized in the hands of the thief, t^. may, if he
pleases, have a writ of restitution for the money. Noy^s reports,
Harrises case.(c)
So if money be stolen, and the thief taken, and the money seized,
he shall have restitution of the money.
The testator is robbed, the thief is convict upon the procurement
of the executor, he shall have restitution. 3 Eliz. Benl. S7. Dy, 201.
6 Co. Rep. 80.
It hath been a great question, if goods be stolen, and by the thief
sold in a market-overt, whether the thief being convicted upon the evi-
dence of the party robbed, he shall have restitution upon this statute
of the thing sold or not, the buyer not being privy to the felony:
those that held he should not, ground themselves upon the
book of 12 H. 8. 10. Mr. DaUon's opinion, cap. 111. p. [543]
229. (c^) upon the resolution in the case o{ market-overt, 5 Co.
Rep. S3, b. which was upon occasion of a writ of restitution,(e) where
it is held, that the sale in market-overt is a bar to the restitution;
and upon the statute of 31 Eliz. cap. 12. where it is specially pro-
vided, that notwithstanding a sale of a horse in market-overt the
owner may take him within six months after the felony upon proof
of his property, which evidenceth, that after the six months he shall
not have restitution ; and of this opinion wais //yr/e just ice (/) at the
sessions held after Trin. 13. Car. Brown ']\\s\\cq dissentienle.
But it seems he shall have restitution upon this statiUe, notwith-
standing the sale in market-overt of the goods stolen, and as to the
authorities, the 12 H. 8. 10. was before the statute of 21 //. 8. and
Mr. Daltoii^s opinion seems to be grounded upon it; the case of
market-overt, 5 Co. Rep. it is true seems to be against the restitu-
tion, tho the case fell off upon this, that the scrivener's shop was no
market-overt by the custom oi London.
As to the statute of 31 Eliz. to which I may add also the statute
of 1 Jac. cap. 21. that enacts, "No sale of stolen goods in London,
fVestminsler, or Southwark, or within two miles to a broker, shall
make any change or alteration of the property or interest:" These
statutes make nothing as to the case in question, for without question
the sale in market-overt changeth the property in those ca'ses, wherein
these and the like statutes have not enacted the contrary, and there-
fore the party cannot take them again from the buyer, unless in case
of brokers and stolen hoxses, ut supra : but this comes not to the
(c) Noy 128. {d) New Edit. cap. 164. p. 543. (e) 1 And. 344. (/) Kel. 35.
543 HISTORIA PLACITORUM CORONiE.
question in hand, for here the act of parHament gives the restitution,
and that only where the felon is convicted; and this restitution is not
prevented by the sale in market-overt. 1. This act was made to
encourage persons robbed to pursue malefactors, and therefore they
have an assurance of restitution, and it would be small en-
[ 544 ]] couragement if a thief by sale in market-overt, which is
every day in almost every shop in London, should elude it.
2. It were against the common good, and would encourage offend-
ers to the common detriment, if this sale should conclude the owner.
3. The man that is robbed, is robbed against his will, and cannot
help it ; but the buyer of stolen goods may chuse whether he will
buy, or if he buy, may yet refuse to buy, unless well secured of the
property of the goods, or knowing the owner.
And if it be said, that the restitution shall be, as in case of an ap-
peal, and a sale in market-overt had barred a restitution in an appeal.
I answer, 1. That it is but gratis dictum, that a sale in a market-
overt had barred restitution in an appeal, for there is no authority
for it, but the only book, that I know in the case, is to the contrary,
viz. 2 Co. Inst it. p. 714. If ^. commit a robbery, the king's officer
seizeth the goods stolen, and sells them in market-overt, tlie party
robbed convicteth ^. upon his appeal, he shall have restitution notwith-
standing such sale, if he made fresh suit. 2. But suppose the appel-
lant should not have restitution, yet that restrains not restitution in
case of the statute of 21 i/. 8. for the words ./?.s though he had beefi
attaint in an appeal are not restrictive, but relative only to the man-
ner of the writ of restitution, which shall be such as in an appeal.
For authorities, 1. It hath been the constant practice at Newgate,
that sale in market-overt hath not been allowed against this writ of
restitution, and this Mr. Lee, the secondary there for above thirty
years, hath attested openly in the court there oftentimes before my-
self, and divers others:(g-) again, 2 Co. Instit. p. 714. lord Coke's
opinion was in these words, So that in this case also, {viz. upon the
statute of 21 H. 8. cap. 11.) the parly robbed, or owner, shall have
restitution notwithstanding any sale in market-overt, ^nA with this
agreed myself and justice Twisden upon consideration of this statute.
Upon this statute of 21 H. S. if the offender be convict
[ 545 ] upon the evidence of the party robbed, or owner, he shall
have restitution, tho there were no fresh suit, or any inquiry
by inquest tonchiiig the same, and this is constant practice, tho in
case of an appeal it be otherwise.
\i Jl. be robbed by B. of a silver cup, a piece of cloth, and other
things, and Ji. prefers an indictment only for one of them, as namely
the clolli, and convict the felon, he shall have restitution of no more
than what is contained in the indictment, and the goods omitted are
confiscate to' the king, as in case of goods omitted in an appeal. 44 E.
3. 44 (A) tamen qnrcre, for it is not really the party's suit. Vide
Dult. cap. IW.p. 2iiS.(/)
(g) See Kel. 48.
(A) Tliis is more directly proved Corone 100. (i) New Edit, ubi tvpra.
HISTORIA PLACITORUM CORONiE. 545
If./?, have his goods stolen by B. and Jl. prefers a bill of indict-
ment, which is found, whereupon B. flies and is outlawed, ^. shall
have restitution, for he gave evidence upon the indictment, which,
tho it be not a conviction, is the ground of the outlawry, which is an
attainder. Dalt. uhi svpra.
A. and B. have their several goods stolen by C. Ji. prefers his bill
of indictment for his goods, C is thereupon convicted, notwithstand-
ing that conviction B. may prefer his bill, and C shall be thereupon
arraigned and tried, to the end that B. may have his restitution,
which he could not have by the conviction upon the indictment oi Ji.
because a distinct felony, tho most usually at the same sessions the
several indictments against the same person are tried by the same
\\\xs\ vide 4 ^. 4. 11. Shimf. P. C.foL 167. L
But suppose that C. be attaint on the indictment preferred by j2.
arak reprieved till another sessions, and then B. prefer a bill of indict-
ment for another robbery upon him by C. in this case C. may plead
to the country if he please, and upon conviction B. shall have restitu-
tion, for the court is not bound to take notice at another sessions,
that he is attaint, but he m^ if he please plead aiitrefoits attaint,
and refuse to answer, and then by the book of 44 E. 3. 44. in case of
an appeal he should have no restitution, but his goods should
be confiscate to the king, but I think that to serve the statute [ 546 1
of 21 H. 8. as to the point of restitution the court may and
ill reason ought to inquire by an inquest of office touching the rob-
bery of B. and being ascertained of it thereby to grant restitution,
tho they ought to give no new judgment of death upon such inquest,
at least, unless the prisoner had pleaded to the indictment not guilty,
and put himself upon the country: vide 4 E. 4. 11. Bait. cajj. 111.
p. 714, 115. ,{k) Sta?7if. P. C. p. 107.
And thus far of restitution by the statute of 21 H. 8.
III. Restitution by course of law is either by taking his goods, or
by action. [4]
1. As to retaking of goods stolen: if A. steal the goods of ^. and
(k) New Edit. cap. 164. p. 543.
[4] In a recent case it was held, that if goods have been stolen, or there be reasonable
ground for presuming that fact, the owner cannot maintain trover against tlie person
who bought them of the supposed thief, without he has done every tiling in his power to
bring the thief to justice. Gemson v. Woodfall, 2 C. Sf P. 41.
The owner can have no civil redress against the felon himself before conviction, as it
would be merging the felony in the civil action; and if he has no redress against the
felon himself he has none against persons who derive their title through him. Crosby v.
Long, 12 East's K. 40'J. And if the felon be paidoncd after conviction, or even if he be
hovajide acquitted, the owner may bring an action against him in trespass, or trover to
recover dam.iges; for the cFvil right was not merged in the public injury, but only sus-
pended till the prosecution was concluded. Id.
If the thing s^tolcn be converted inio money, the owner may, after having done all he
can to bring the offender to justice, have the produce instead of the specific chattel.
5 Rip. 10;). Keilw. 49. See, aUo, Horwood v. Smith, 2 T. H. 750, and Bishop v. Shel-
leto, 2 It. Sf Aid. 329 (n.)
'I'here is now a statute in England on the subject of the restitution of stolen goods,
entitled " An act to encourage tiie prosecution of offenders." 7 &, 8 Geo. IV. c. 2d,
VOL. I. — 48
546 HISTORIA PLACITORUM CORONA.
B. take his goods of ./^. again to the intent to favour him or maintain
him, this is unlawful and punishable by fine and imprisonment, (/)
but if he take them again without any such intent, it is no offense.
Mich. 16 Jac. B. R. Higgins and Jindrews,{rn) but justifiable.
But after the felon is convicted, it can be no colour of crime to take
his goods again, where he finds them, because he hath pursued the
law upon him, and may have his writ of restitution, if he please.
2. By course of common law: A. steals the goods of B. viz. fifty
pounds in money, A. is convicted, and hath his clergy upon the pro-
secution of B. B. brings a trover and conversion for this fifty pounds,
and upon not guilty pleaded this special matter is found, and adjudged
for the plaintiff, because now the party hath prosecuted the law
against him, and no mischief to the commonwealth; but it was held,
that if a man feloniously steal goods, and before prosecution by in-
dictment the party robbed brings trover., it lies not, for so felo^es
should be healed. M. 1652. B. R. Dnwkes and Coverieigh;{n) vide
accordant Noyes reports,(o) Markham and Cob; but if the
[547 J plaintiff had not given evidence upon the conviction, it was
held, that the action lay not, b#t the goods were confiscate
to the king, and for want of that averment in the case of Markham,
judgment was given for the defendant in trespass.
CHAPTER XLVIIL
OF BURGLARY, THE KINDS, AND PUNJS5MENT.
I COME to those crimes that specially concern the habitation of a man,
to which the laws of this kingdom have a special respect, because
every man by the law hath a special protection in reference to his
house and d\velling.(fl)
And that is the reason, that a man may assemble people together
for the safeguard of his house, which he could not do in relation to
travel, or a journey. 21 H. 7. 39. a.
And upon the same reason it is, that not only by the statute of 24
H. 8. cap. 5. but even by the common law, if any come to commit
a felony upon me in my house, and I kill him, it is no felony, nor
inducelh any forfeiture; quod vide supra, p. 487. vide Sir Henry
(I) And so seems the practice of advertising a reward for brinjring- goods stolen, and
no questions asked, which 1 have lieard lord chancellor Macclisjield declare to be highly
criminal, as being a sort of compounding of felony, for the goods by that means return-
ing to the right owner, a stop is put to the inquiry and prosecution of the felon, and
theneby great encouragement is given to the commission of such offences. See postea,
cap. 56.
(m) 2 Rol. Rep. 55. (n) Style 346. (o) Noy 82.
(a) That this was the notion among the Romans also appears from Cicero in oratione
pro domo, cap. 41. Quid cnini sanctius, quid omni religione miinitius, qunm domus imiiis-
cujusque civium? hie ara sunt, hie soci,—hoc perfugiwn est ita sanctum omnibus, ut inde
abripi neminem fas sit.
HISTORIA PLACITORUM CORONA. 547
Spelman Gloss, tit. Hamsecken, ^- ibidem tit. Biirglaria, whereby
it appears, that by the antient laws of Caniitiis,{b) and oi H. l.(c)
it was punished with death.
The common genus of offenses that comes under the name of
Hamsecken, is that which is usually called house-breaking, which
sometimes comes under the common appellation of burqla7-y,
whether committed in the day or night to the intent to com- [ 548 ~\
mit felony, so that house-breaking of this kind is of two
natures.
1. That which in a vulgar and improper acceptation is sometimes
called burglary. And,
2. That which in a strict and legal acceptation is so called.
I. As to the former of these, kam,sacken, house-breaking, or burg-
lary in a vulgar acceptation is of several kinds.
1. Robbing any person by day or night in his dwelling-house, the
dweller, his wife, children, or serv-ants being in the house, and put in
fear; this requires that there be something taken, but it requires not
an actual breach of the house; but it is all one, whether he actually
breaks the house, or enters per ostia aperta, (or it is in truth robbery
either way, and from this offense clergy is taken away by the statute
of 23 H. 8. cap. 1. and 25 H. S. cap. 3. from the principal, and by the
statute of 4 4* 5 P. 4' M cap. 4. from the accessary.
2. Robbing a person by day or night in his dwelling-house, the
dweller, his wife or children being in the house, and not put in fear;
this requires, 1. An actual breaking of the house. 2. An actual taking
of something, but the persons need not ^e put in fear; and by the
statute of 5 (^' 6 E. 6. cap. 9. clergy is in this case taken from the
principal, that enters the house; and by the statute of 4 4' 5 F. 4* M.
cap. 4. from the accessary before.
3. Robbing a dwelling-house by day or night, and taking away
goods, none being in the house; this requires an actual breaking, and
an actual taking of something, and without the latter it is not felony,
but if accompanied with both, and the taking of goods be of the value
of five shillings, it is excluded from clergy by 39 Eliz. cap. 15.
4. A breaking of the house in the day or night to the intent to
steal or commit a felony,[l] any person being in the house, and put
(h) I. 61. reckons irruptio in d'omum among the scelera inexpialilia.
(c) I. 80. See Wilk. Leg. Anglo-Sax. p. 273.
[1] Whoever in the night time breaks and enters the dwelling-house of another, with
intent to commit murder, rape, arson, robbery, or larceny, within the same; or by day
or night enters the same witli such intent, and in the niglit, breaks with such intent any
apartment thereof; or in the night enters the same with such intent, and in the night
breaks out of such dwelling-house, or being an inmate therein, in the night breaks and
enters, with such intent, any apartment thereof, without any right or authority to enter
the same, at the time, is guilty of burglary. Mass. Penal Code. Tit. Biirglarij.
According to the law of England, there are six ways of committing Burglary:
^ 1. By breaking and entry from without, with intent, &c.
"Si By entry from without, &,c. and breaking some apartment within, with intent, &c.
3. By breaking and entry of an inner apartment, by an inmate, with intent, «fcc.
548 HISTORIA PLACITORUM CORONA.
in fear, tho nothing be actually taken, this is burglary by the common
law, if it is in the night, and felony by the statute of 1 ^. 6 cap. 12.
tho in the day, and is excluded from clergy by the statute of 1 E. 6.
whether by day or by night, but then it requires, 1. An actual break-
ing of the house, and not an entry /?er osl'ia aperta. 2. An
[549] entry with intent to commit a felony, and so laid in the in-
dictment. PouKer^s case, 11 Co. Rep. 31. b.[2']
3. A putting in fear, but accessaries have clergy. [3]
II. Legal or proper burglary is of two kinds, viz. 1. Complicated
and mixed with another felony, as breaking the house, and stealing
goods, either with putting in fear or without putting in fear, some-
body in the house, or nobody in the house, which requires, 1. That
it be done in the night. 2. That there be an actual breaking.
2. Simple burglary, and that either, 1. With putting in fear, and
then the principal is excluded of clergy by the statute of 1 JS. 6. and
also by the statute of 18 Eliz. or, 2. Without putting in fear, and
then he is excluded of clergy by the statute of IS Eliz.
And this chapter speaks only of proper or legal burglaries, of those
improper burglaries I have spoken before.
Burglary is described by Sir Henri/ Spehnan{e) to be nocturna
diruptio alicvjiis hahiiaculi vel ecclesise, etiam murorum porta-
rumve civitatis aut burgi ad fdoniani perpctrandam.
My lord Coke P. C. cap. 14. p. 63. more fully describes it. "A
burglar is he, that in the night-time breaketh and entreth into a
mansion-house of another of intent to kill some reasonable creature,
or to commit some other fflony within the same, whether his felo-
nious intent he executed or not.
And accordingly the indictment runs, quod J. S. 1 die Julii anno
&.C. in nocte ejusdem diei vi & armis domum mansionaleni A. B.
(e) In verba burglaria.
4. By entry, with intent, &c., and breaking out.
5. By entry and actual commission of felony within, and breaking out.
6. By breaking and entry, and actual commission of felony within.
The first three and the sixth offences (12 East, 519.) are burglary at common law.
It is uncertain whether the fourth is burglary at common law or not. Hale denies it to
be burglary, ipage'554.) where the breaking out was with intent to escape only. The
general doctrine is, that both the breaking and entry must be with felonious intent. If
this case is not an exception, (and we are by no means ready to conclude that it is,)
breaking out, if a breaking at all, at common law, can be so only when the offender
pursues his felonious intent; as when he carries away something stolen, or pursues some
one with intent to murder, &c. But both the fourth and filth are burglary, by statute
17 Anne, c. 7. re-enacted in words a little varied in 7 & 8 Geo. IV. c. 29. s. 11.
" If any person sliall enter the dwelling-house of another with intent to commit felony,
or being in such dwelling-house, shall commit any felony, and shall, in either case, break
out of the said dwelling-liouse in the night time, snch person shall be deemed guilty of
burglary." Such is generally the state of the law of burgl.iry in England. Mass. Com.
Rep. See Rex v. Hanson, 1 Roofs Rep. .59. Tke Slate v. Wi'son, Coxe^s N. J. Rep. 441.
Com. V. Newell, 1 Mass. R. 247. Coin. v. Brown., 3 Rawle Rep. 207.
[2] State V. Wilson Coxa's, N. J. Rep. 441. Com. v. Newell, 7 Mass. R. 247. Rex v.
Hanson, 1 RooVs R. 59.
[3] As to clergy, see ante ch, 44. . '
HISTORIA PLACITORUM CORONA. 549
felonice & burglariter fregit & intravit, ac ad tunc & ibidem unum
scyphum argenteuni &c. de bonis & catailis ejnsdeni Jl. B. in eadem
doriio invent' felonice & burglariter fiiratus fuit, cepit & asportavit;
or if no theft were actually committed, then ex intentione ad bona
& catalla ejiisdem A. B. in eadem dorno existent' felonice & bur-
glariter furandiim, capiendum & asportandum, or ea intentione ad
ipsum A. B. ibidem felonice interficiendiim contra pacem &c.
And note, that these several clauses in the indictment are essential
to the constitution of burglary, 1. That it be said noctanter, or in
nocte ejusdem diei(f) for if it be in the day-time, it is not
burglary. 2. That it be said in the indictment burglariter, [ 550^
for it is a legal word of art, without which burglary cannot
be expressed with any kind of other word or other circumlocution,
and therefore, where the indictment is burgaliter instead of bur-
glariter, it makes no indictment of burglary, so if it be burgenter.
4 Co. Rep. 39. b.{g)
3. It must be fregit 4* intravit, for it is held, that breaking with-
out entring, or entring without breaking makes not burglary, sed de
hoc infra; yet Trin. 5 Jac. B. R. an indictment, quod felonicl §•
burglariter fregit dom,um mansionalern, Sf'C. was a good indict-
ment of burglary, and that the entry is sufficiently implied, even in
an indictment, by the words burglariter fregit, h\xi the safest and
common way is to say fregit S,' intravit.
4. It must be said domum niansionalem, where burglary is com-
mitted in a house, and not generally domum, (or that is too uncertain,
and at large.
5. It must be alleged, that he committed a felony in the same
house, or that he brake and entred the house to the intent to commit
a felony, but these things will be fuller examined, when we come to
particulars.
1. Therefore the time, wherein it must be committed to make it
burglary, must be in the night.[4]
(/) See 9 Co. 66. b. (g) See also 5 Co. 121. b.
[4] See 4 Bl. Com. 224. But now in England, as to what shall be held day and what
night, see 7 Will. IV. Sf 1 Vict. c. 86, s. 4, which enacts, that 9 o'clock in the evening
of one day until 6 o'clock in the morning of the succeeding day, shall be considered
night. ■
Anciently, the day was accounted to begin only at sun-rising, and to end immediately
at sun-set, as stated by Lord Hale, infra ; but the opinion usually held was, that if there
be daylight, or crepusculum, twilight, enough to descern a man's face, it was no bur-
glary. 3 Inst 63; 2 EasVs, P.. C. 509. But tliis did not extend to moonlight, for then
many midnight burglaries would go unpunished. 4 Blue. sup. The brealiuig and en-
tering must both be committed in the night time. But the breaking may be committed
in one night, and the entering in another. Rex v. Jordan, 7 Car. Sf P. 432. The
breaking, however, must be with intent to enter, and the entry with intent to commit a
felony. Rex v. Smith, R. .^ i?. 417.
If there be daylight or twilight enough begun or left, whereby the countenance of a
person may be reasonably discerned, a breaking and entry is not burglary by the com-
mon law. 7 Dane's Ahr. 134. Hence an indictment, which alleged the crime to have
been committed between the hours of 12 at night and 9 of the succeeding evening, will
550 HISTORIA PLACITORUM CORONA.
It hath been antiently held, that after sun -set, tho day-Hght be not
quite gone, or before sun-rising is noctanter to make a burglary,
halt. cap. 99. p. 352,{h) and accordingly cited by Crompt.fol. o2.b,
to have been judged by Portmaii, 3 E. 6.,(e) and the felons executed,
and 21 H. 7. Kelw. 15. a.
But the latter opinion hath been and still obtaineth, that if the
sun be set, yet if the countenance of a party can be reasonably
discerned by the light of the sun or crepusculum, it is not night,
nor noctanter to make a burglary; and with this agrees Co; P. C.
p. 63. and hence it is, that altho a town unwalled shall not be
amerced for the escape of a murderer, if the murder were com-
mitted in the night, yet if it- were done only in vespere diei,X\\Q
township shall be amerced. 3 E. 3. Coron. 293. And if a
{"551 ] a robbery be committed before sun-rising, or after sun-set,
and whilst it is so far day-light, that the countenance of a
man can be reasonably discerned by the light of the day, yet the
hundred shall be charged, otherwise where it is done in the night,
7 Co. Rep. 34. Milburn^s case: but this is not intended of moon-
light, for then midnight house-breaking should be no burglary;
and the word noctanter is to be applied to all that follows, viz,
fregit Si- intravit, if the breaking of the house were in the day-
time, and the entring in the night, or the breaking in the night,
and entring in the day, this will not be burglary, for both make
the offense, and both must be noctanter: vide CrompL 33. a. ex
8 E. 4. {k) ... . _
But if they break a hole in the house one night, to the intent to
enter another night and commit felony, and accordingly they come
at another night, and commit a felony through the hole they so
made the night before, this seems to be burglary, for the breaking
and entring were both noctanter, tho not the same night; and it
shall be supposed, that they brake and entred the night when they
entred, for the breaking makes not the burglary till the entry.
2. There must be a breaking and an entry to make the burglary,
and therefore I shall speak of them both together.[5]
(h) New Edit. cap. 151. p. 486.
(i) See the like judgment per Fineux, Crompt. 33. a.
(k) This case does not fully prove the point it is brought for, for the resolution there
was only, that if thieves enter in by night at an hole in tlie wall, which was there before,
it is not burglary, but it docs not appear who made the hole.
be quashed for want of a noctanter. The State v. MatJier, N. Chipm. R. 32 ; The Slate v.
Bancroft, 10 Mass. R. 10.5; Th,' State v. (1. S. 1 rtjlcr, Vennt. R. 2'J5; Com. v. Cheta-
Her, 1 Dane^s Air. 134; sed vide Thomas v. The State, 5 How. {Miss.) Rep. 20.
[5] It is deemed an entry, when the tliief breaketli the house, and his body, or any
part thereof, as his foot or his arm, is within any part of the house, or when he puttcth
a gun into a window which he hath broki^n, (thoiigli the luind be not in,) or into a hole
of the house, whicfi he hatli made with intent to murder or kill, this is an entry and
breaking of the house; but, if he doth barely break the house, without any such entry at
all, this is no burglary. 3 Inst. 64. 2 East's I'. C. 4U0.
Thieves c;imc by night to rob a house. Tho owner went out and struck one of them;
another made a pass with a sword at persons lie saw in the entry, and in so doing, his
HISTORIA PLACITORUM CORONA. 551
Antiently the law was so strict against burglary, that the very
coming to a house with intent to cotninit a burglary was held pun-
ishable with death, Cromp. 31. by Sir Anthony Brown; but that
obtains not now for law without a burglary committed.
Jiand was over the threshold. This was adjudged burglary by great advice. 2 EasVs P.
C. 490. •
In the case of George Gibbons, Old Bailey, June 1752, (Post. 107. 2 East's P. C. 490.)
■which was indicted for burglary in the dwelling-house of John Allan, it appeared in
evidence, that the prisoner, in the night time, cut a hole in the window shutters of the
prosecutor's shop, which was part of his dwelling-house, and putting his hand through
the hole, took out watches and other things, which hung in the shop within his reach, but
no entry was proved, otherwise than by putting his hand through the hole. This was
held to be burglary, and the prisoner was convicted. Introducing the hand through a
pane of glass, broken by the prisoner, between an outer window and an inner shutter,
for the purpose of undoing the window latch, is a sufficient entry. R. v. Baily, R. Sf
R. 341. So would the mere introduction of the offender's finger. R. v. Davis, R. Sf
R. 499., and see ante, 533.
But an entry through a hole in the roof, left for the purpose of admitting light, is not
a sufficient entry to constitute burglary; for a chimney is a necessary opening and needs
protection; whereas, if a man choose to leave a hole in the wall or roof of his house^ in-
stead of a fastened window, he must take the consequences. R. v. Spriggs, 1 Moo. Sf
Rob. 357. Co7n. v. Stewart, 7 Dane's Abr. 136.
If the instrument with which the house is broken, happen to enter the house, but with-
out any intention on the part of the burglar to effect his felonious intent, (as for instance,
to draw out the goods,) with it, this will not be a sufficient entry to constitute a burglary.
Rex V. Hughes el at., 1 Leach, 496. See R. v. Roberts, 2 East's P. C. 487.
The prisoner raised a window, which was not bolted, and he tlirust a crow-bar under
the bottom of the shutter, (which was about half a foot within the window,) so as to
make an indentation on the inside of the shutter, but from the length of the bar, his hand
was not inside t^ie house. This was held not to be a sufficient entry to constitute a bur-
glary. R. V. Rust Sf Ford, R. S( M. 184. Car. C. L. 293. S. C. by the name of R. v.
Roberts.
Where the house was broken, but not entered, and the owner, for fear, threw out his
money, it was holden to be no burglary, though clearly robbery, if taken in the presence
of the owner. 2 East's P. C. 490.
Where thieves bored a hole through the door with a centre-bit, and part of the chips ,
were found in the inside of the house, by which it was apparent that the end of the cen-
tre-bit had penetrated into the house; yet, as the instrument had not been introduced for
the purpose of taking the property or committing any other felony, it was decided, that
this was not sufficient to constitute burglary. R. v. Hughes, 2 East's P. C. 491.
If divers come in the night to do a burglary, and one of them break and enter, the
rest of them standing to watch at a distance, this is burglary in all. 3 Inst. 64.
A breaking may be actual or constructive : an actual breaking may be made by
breaking the substance of a door or window, as the glass or panels. Com. v. Slevenson,
8 Pick. R. 354. Rex v. McKearney, Jebb's Cas. 99.
By unfastening either door or window and opening it. Rex v. Robinson, Mood. C. C.
337. State V. Wilson, Coxe'sN.J. R. 439. Com. v. Stewart, 7 Dane's Abr. 136.
By breaking away the sides of an aperture, so as to enlarge it. Rex v. Robinson, Mood.
C. C. 327.
By raising a sash or trap-door, or pushing open a door. Rex v. Hyam, 7 C. Sf P. 441.
Rex V. Haynes, R. ^ R. 451. Rex v. Brown, 2 East's P. C. 487. Rex v. Callar, R. Sf
R. 157. Rex v. Russell, Mood. 377. Sed vide Rex v. Laurence, A C. Sf P. 231.
And it is a breaking, although there be an outside door or shutter to the same
opening, which is not broken. Rex v. Bailey, R. S^ R. 341. Rex v. Parses, 1 C. ^ P. 300.
Rex-w Roberts, 2 East's P. C. 487. nor even closed. Rex v. Haynes, R. 4" Ry. 451.
By breaking, removing, or opening the roof, wall, ceiling, floor, or any defence or
barrier against entry, which is parcel of the dwelling-house. 2 Russ. on C. 3.
But it seems the entering any aperture, found open, is not a breaking. Com. v. Steward,
7 Dane's Abr. 136. Rex v. Spriggs, cited sup. Rex v. L^is, 2 C. Sf P. 628..
It is a constructive breaking, if aa entry is actually, made, and Jthe^means of entrance
551 HISTORIA PLACITORUM CORONA.
Fregit, there is a double kind of breaking, 1. In law, and thus
every one that enters into another's house against his will, or to con:i-
mit a felony, tho the doors be open, doth in law break the house.
2. There is a breaking in fact an actual force upon the house, as by
opening a door, breaking a window, S,-c.
And altho, in the remembrance of some yet alive. Sir N. H.{1)
chief justice did hold, that a breaking in law ^as sufficient to make
a burglary, as if a man entred into the house by the doors
j^ 552 ] open in the night, and stole goods, that this is burglary, and
accordingly is Crompt. 32. a. 27 Jissiz 38. yet the law is,
that a bare breaking in law, viz. an entry by the doors or windows
open is not sufficient to make burglary without an actual breaking,
Co. P. C. p. 64. and so the law hath been generally taken to this day
in case of burglary.(m)
And these acts amount to an actual breaking, viz. opening the
casement, or breaking the glass window, picking open a lock of a
door with a false key, or putting back the lock with a knife or dag-
ger, unlatching the door that is only latched, to put back the leaf of
a window with a dagger, Dult. cap. 99. {n) Crompt. 33. a. and so is
common experience.[6]
To take down a pane of glass of a glass-window by taking out or
bending aside the nails that fasten it is a breaking of a house within
lliis law, because the glass-window is parcel of the house.
It was held by Manwood chief baron, that if a thief goes down a
chimney to steal, this is a breaking and entring, Crompt. fol. 32. b.
and hereunto agrees Mr. Ballon, p. 253.(o)[7]
(Z) Sir Nicholas Hyde, see Cro. Car. 65. 225.
(m) See Kd. 67 ^ 70. (n) New Edit. p. 487. ;
(o) The reason of this seems to be, because it is as much shut as the nature of the
things will admit.
are obtained by frightful noises, showing dangerous weapons, or attacks on the house.
Rex V. Swallow, 2 Kuss. C. ^ M. 8. 2 East's P. C. 486.
By any fraud or trick practised to obtain admission; as by abuse of process or legal
authority; or under pretence of business with some one within; or by fraudulently per-
suajding another tp give adnnssion; or by knocking or otherwise pretending a right or
lawful occasion to enter; or under any pretence of a similar character. Rex v. Gascoigne,
1 Leach, C. C. 284. McGregor's case, Hume's Crim. Law, 98. Browne's case, Jb. 4 BL
Com. 226.
[6] Pugh V. Griffiths, 7 Ad.' <^- El. 836 ; Rex v. Urdan, 7 Car. Sf P. 432 ; Rex v.
Wheldon^, 8 Car. ^ P. 247 ; Rex v. Hyams,! Car. S; Pay. 441.
[7] If Ihethief enter by the chimney, it is a breaking; for that is as much closed as
the nature of things will permit. 1 Hawk, c. 38, s. 4. 4 Bl. Com. 22B.
And it would be a burglarious breaking to constitute burglary, though the party does
not enter any of the rooms of the house. Thus in Rex v, Brice, R. Sf R. 450, the priso-
ner got in at a chimney and lowered liimsclf a considerable way down just above a man-
tel-piece of a room on the ground Hoor. Holroyd and Burroughs, JJ. thought this was
not a breaking and entering of tiie dwelling-house, on the ground that he was not within
the dwelling-liouse, till lie was below the chimney-piece. The rest of the judges, how-
ever, held otherwise; for that the chimney was part of the dwelling-house, that the get-
ting in at the top was a breaking of the dwelling-house, and that the lowering himself
was an entry therein.
There are two cases in the Scotch law, which are somewhat analogous to the entry
HISTORIA PLACITORUM CORONA. 552
. There was one arraigned before me at Cambriclge for burglary, and
upon the evidence it appeared, that he crept down a chimney; I was
doubtful whether this were burglary, and so were some others; but
upon examination it appeared, that in liis creeping down some of the
into a chimney, which have been decided to be brealiings. The one where the defendant
entered a sewer, which issued from a cellar, and passed under ground. Hume's Crim. Law
of Scot. § 97 ; and tlie other, wliere he entered a paper-mill by tlie race-way of the water-
wheel. Id, note (3.) In the former case, it is not settled, whether the passing into the
sewer, or passing that part o.f it which enters the walls of the house, or, passing out of it
into the house constituted the offence. The latter could only apply in l)urglary, where
such a building had a covered communication with a dwelling-house.
Where the prisoner effected an entry by pulling down the upper sash cf a window
■which had not been fastened, but merely kept in its place by the pulley-weight, the
judges held this to be a sufficient breaking to constitute burglary, even although it also
appeared that an outside shutter, by which the window was usually secured, was not
closed or fastened at the time. R. v. Huines and Harrison, R. Sf R. 451 ; and see R. v.
Hyams, 7 C. <^ P. 441.
Where an entry was first into an outer cellar by lifting up a heavy iron grating that
led into it, and then into the house by a window, and it appeared that the window,
which opened by hinges, had been fastened by means of two nails as wedges, but could,
notwithstanding, easily be opened by pushing; the judges held, that opening the window
so secured, was a breaking sufficient to constitute burglary. Rex v. Hall, R. Sf R. 355.
So where a party thrust his arm through the broken pane of a window, and in so doing
broke some more of the pane, and removed the fastenings of the window and opened it,
R. V. Robinson, R, ^ M. 327. And see R. v. Bird, 9 C. S^ P. 44.
But if a window thus opening on hinges, or a door, be not fastened at all, opening
them would not be a breaking within the definition of burglary. Even where the heavy
flat-door of a cellar which would keep closed by its own weight, and would require some
degree of force to raise it, was opened; it had bolts by which it might have been fastened
on the inside, but it did not appear it was so fastened at the time: the judges were
divided in opinion, whether opening of this door was such a breaking of the bouse as
constituted burglary. R. v. Cullan, R. Sf R. 157. It was holden in Brown's case,
(2 East, P. C. 487.) that it was.
It seems the only difference between these two cases is, that in Brown^s case there
was no interior fastenings, but in Cullan's there were, though not used. In a later case
it has been held by Bolland, B. that the lifting up of a trap-door covering a cellar which
was merely kept in its place by its own weight, and whicli had no fastenings, because it
being a new trap-door, they had not been put on, is not a sufficient breaking to consti-
lute a burglary. Rex v. Lawrence, 4 C. Sf P. 231. See R. v. Russell, R. Sf M. 377.
When the offender, with intent to commit a fielony, obtains admission by some artifice
or trick for the purpose of effecting it, he will be guilty of burglary, for this is a con-
structive breaking. Thus where thjeves, having an intent to roh, raised the hue and cry,
and brought ihe constable, to whom the owner opened the door; and when they came in
they bound the constable and robbed the owner ; this was held a burglary. So if admis-
sion be gained under pretence of business; or if one take lodgings with a like felonious
intent, and afterwards rob the landlord; or get possession of a dwelling-house by false
aflidavits without any colour of tiUe, and then rifie the house; such entrance being
gained by fraud, will be burglarious. 2 East's P. C. 485. So in A. Hawkins's case,
O, B. 1704, 2 East's P. C. 485, she was indicted for burglary; upon evidence it
appeared that she was acquainted with the house, and knew that the family were in the
country; and meeting with the boy who kept the key, she prevailed upon him to go
with her to the house by the promise of a pot of ale, robbed the house and went off; and
this being in tlie nisU time, it was adjudged that the prisoner was clearly guilty of bur-
glary. And see Doe. v. Carter, 8 T. R. 302.
A breaking may be also constructive, as where in consequence of violence commenced
or threatened in order to obtain entrance, the owner, citlier from apprehension of the
force, or with a view more effectually to repel it, opens the door through which the rob-
ber enters. But where no fraud or conspiracy is made use of, or violence commenced or
threatened in order to obtaiij an entrance, there must be an actual breach of some part
552 HISTORIA PLACITORUM CORONA.
bricks of the chimney were loosened, and fell down in the room,
which put it out of question, and direction was given to find it bur-
glary; but the jury acquuted him of the whole fact.
In some cases there may be a burglary committed by a man with-
out an actual breaking.
Thieves come with a pretended hue and cry, and require the con-
stable to go along with them to search for felons, and whilst he goes
with them into a man's house, they bind the constable and dweller,
and rob him, this is burglary, (/?) Co. P. 0. p. 64. The hke hap-
(p) Because infraudem legis; for the same reason it is burglary, where the thieves
gain entrance by pretenses of business with one in the house, Kel. 42, or of executing
any process, or the like, Kel. 43, 44. 62. 82.
of the house, though it need not be accompanied with any violence as to the manner of
executing it. 2 East^s P. C. 486.
Some parts of the house must be broken, where the prisoner opened the area gate with
a skeleton key, and from the area passed into the kitchen through a door, which did not
appear to have been shut at the time,. the judges held that opening the area gate was not
a breaking of tlie dwelling, as there was no free passage in the time of sleep from the
area into the house. Rex v. Davis, R. Sf R. 322.
So breaking a door which formed part of the outward fence of the curtilage of a dwell-
ing-house, and which opened not in any building, but into a yard only, was holden not
to be a breaking of the dwelling-house; the premises consisted of a dwelling-house,
warehouse, and stables surrounding a yard; there was an immediate entrance to the
dwelling-house from the street, and a gate and gateway under one of the warehouses
leading into the yard; the prisoner entered the premises by breaking this gate: the
judges held that this was not burglary ; that breaking this gate, which was part of the
outward fence of the curtilage, and not opening into any part of the buildings, was not a
breaking of any part of the dwelling-house. R. v. Bennett, R. S( R. 289.
A shutter-box partly projected from a house, and adjoined the side of the shop win-
dow, which side was protected by wooden panelling lined with iron: — Held, that the
breaking and entering the shutter-box did not constitute burglary. R. v. Paine^
7 Car Sf P. 135. .
A burglary may be committed by breaking on the inside, for though a thief enter a
dwelling-house in the night time through the outer door being left open, or by an open
window, yet if, when within the house, he turn the key or unlatch a chamber-door, with
intent to commit felony, this is burglary. {R. v. Johnson, 2 EasVs P. C. 488.) And
this may be done by a servant, who sleeps in an adjacent room, unlatching his master's
door, and entering his apartment with intent to kill him; (ante p. 544, 2 EasVs P. C.
488;) or to commit a rape upon his mistress; (Grrty's case, 1 5'i/a. 481.) But Lord Hale
doubts whether a guest at an inn is guilty of burglary, by rising in the night, open-
ing his own door, and stealing goods from other rooms ; (p. 554.) And it seems cer-
tain, that breaking open a chesi or trunk is nol in itself burglarious; {Post. 108, 109,
2 EasVs P. C. 488;) and according to the better opinion, the same principle applies to
cupboards, presses, and other fixtures which, though attached to the freehold, are in-
tended only the better to supply the place of movable depositories. (Post. 109.) And
Mr. J. Foster there says, " in questions between the heir and devisee and the executor;"-
(see 2 Vern. 508, 1 P. Wms. 94 ;) those fixtures may with propriety enough be con-
sidered as annexed to and parts of the freehold. The law will presume, that it was the
intention of the owner undrr whose bounty the executor clainieth, that they should be so
.considered, to the end that the house might remain to those who by operation of law or
by his bequest should become entitled to it, in the same plight he put it, or should leave
it entire and undefuced. But in capital cases I am of opinion that such fixtures which
merely supply the place of chests and other ordinary utensils of household should be con-
sidered in no other liglif than as mere movables partaking of the nature of those uten-
eils, and adapted to the same use. See 2 EasVs P. C. 489.
Unlocking and opening a hall door of a hou_se, and running away, is a sufficient break-
ing out of the hdusc. Rex v. Lawrence, i C. Sf P. 231. Sec R. v. Compton, 7 C. Sf P.
139.
HISTORIA PLACITORUM CORONA. 553
peneJ in Black Fn/ars 1664, where thieves pretending that J3. har-
boured traitors, called the constable to go with them to apprehend
him, and tlie constable entring, they bound the constable, and rob-
bed ^3. and were executed for burglary, and yet in both cases tlie
owner opened the doors of his own accord, at the command of the
constable. Cromp. 32. h.
Tliieves come in the night to rob A. who, perceiving it, opens his
door, and issues out and strikes one of the thieves with a staff, an-
other thief having a pistol in his hand, perceiving others in the entry
ready to interrupt them, puts his pistol within the door over the
threshold, and shot, so that his hand was over the threshold, but
neither his foot, nor the rest of his body, and upon this evidence by
great advice it was adjudged burglary, and the thief hanged, and yet
he brake not the house, 26 Eliz. Cromp. 32. a.
If.-'?, the servant of B. conspire with C. to let him in to rob B. and
accordingly A. in the night-time opens the door or window, and lets
him in, this is burglary in C. but larciny in A. the servant, Dalt.
cap, 99. p. 253. (q) it seems it is burglary in both, for if it be burglary
in C. it must needs be so in A. because he is present, and aiding to
C. to commit this burglary. [8]
Ift^. enter the house of B. in the night-time, the outward door
being open, or by an open window, and when he is within the house,
turns a key of a door of a chamber, or unlatcheth a chamber door
to the intent to steal, this is burglary, tho the outward door were
open; and so it was adjudged upon a special verdict before me at
the sessions at Newgate 1672, by advice of many judges then also
present.
And so it is, if a thief be lodged in an, inn, and in the night he
stealeth goods, and goeth away, or if he enter into the house secretly
in the day-time, and there stayeth till night, and then steals goods and
goes away, this is not burglary, DalL iibi supra p. 253. and Cromp.
34. a. but if in either of the cases they had opened an inner chamber
dooTi and taken the goods, it had been burglary, agreed 1672.(r)
The servant lies in one part of the house, the master in
another, and the stair-foot door of the master's chamber is [ 554 ]
latched; the servant came in the night, and unlatched the
stair-foot door, and went up into his master's chamber with a hatchet
intending to kill him, and wounded him dangerously, but the master
escaped. (.9) Upon this special matter found at Winchester assizes,
by the advice of the greater number of the judges, exceptis paucis,{f)
it was adjudged burglary, and the offender was executed. T. \G Jac.
Hutt. Bep. the case of Hay don aiid JEdmutids.{u)
{(]) New Edit. p. 487. (r) Kel. 69.
^s) In old times this would have been adjudged petit treason, for antiently where the
intent was so apparent voluntas reputabatur pro facto. Coron. 383.
{t) They all concurred, except Winch, who doubted. ((/) Hutt. 20. Kel. 67.
[8] Rex V. Johnson, 1 Car. Sf Marsh. 218 ; Rex v. Cornwell, 2 Stra. R. 860; 19 State
Trials, 782. note.
554 HISTORIA PLACITORUM CORONA.
If a man enter in the night-time by the doors open, with the in-
tent to steal, and is pursued, whereby he opens another door to make
his escape, tliis I think is not burglary against the opinion of Dalt.
p. 25o.{x) out of Sir Francis Bacon, for fregit <§* exivit, non /regit
8c intravit.{y)
\{ Ji. be a lodger in an itm, and he goes up to his chamber to bed,
and the chamberlain pulls to the door and latcheth it, or Ji. himself
locks it, and in the night he riselh, openeth his chamber door, steals
goods in the house, and goes away, it may be a question, whether
this be burglary, it seems not, because he had a kind of special
interest in his chamber, and so the opening of his own door was no
breaking of the inn-keeper's house, for t/^. hath a special property in
his chamber; but if he had opened the chamber oi B. a lodger in
the inn to steal his goods, this had been burglary.
And in that case of a lodger, tho he hath a special interest in the
chamber, yet he being but a lodger, and in an inn, the burglary
must be supposed of the mansion-house of the inn-keeper :(z) vide
plus infra.
If A. enter into the house of B. in the night, by the doors open,
and breaks open a chest, and takes away goods without breaking
open of an inner door, this is no burglary, because the chest is no
part of the house. (a)
But if he breaks open a study or counting-house, or shop
[] 555 1 within the house, this is burglary, tho none usually lodge in
the study; and the same law seems to be, if he break open
a cupboard or counter fixed to the house ;(Z>) qusere.
3. Fregit <§' intravit. There must be an entry as well as a break-
ing, and both must be in the night, and with an intent to steal, other-
wise it is no burglary. [9]
t-^. intending to rob B. breaks a hole in his house, but enters not,
B. for fear, throws out his money to him, t--?. takes it and carries it
away, this is certainly robbery, and some have held it burglary, tho
Ji. never entred the house ; and so it is reported to have been ad-
judged by Saunders chief baron. Crompt. 31. b. tamen qusere.{c)
If t-^. breaks the house o{ B. in the night-time, with intent to steal
goods, and breaks the window, and puts in his hand, or puts in a
hook, or other engine to reach out goods, or puts a pistol in at the
window with an intent to kill, tho his hand be not within the window,
this is burglary. Co. P. C. p. 64. Vide infra.
(x) New Edit. p. 487.
(y) But now this doubt is settled by 12 Ann. cap. 7. whereby breaking' to get out is
put upon the same foot with breaking to get in. And see 7^8 W. IV. c. 29. s. 11.
(z) Kel. 83.
(fl!) Kel. 69. Put it is a felony, for which the offender is ousted of his clergy, by 3 ^T
AW.&; M. cap. 9.
(/») Kel. vbi supra. ' . ' .
(c) It was adjudged by Mountague chief justice C. B. and Saunders only related it
[9] Sed vide Pickering v. RuM, 1 Stark. iJ. 48; 4 Campb. R. 220. -S. C.
HISTORIA PLACITORUM CORONA. 555
Bin if he shoots without the window, and the bullet comes in, this
seems to be no entry to make burglary; quasre.[lO]
^. B. and C. come in the night by consent to break and enter the
house o{ D. to commit a felony, c/^. only actually breaks and enters
the house, and B. stands near the door, but actually enters not, C.
stands at the lane's end, or orchard gate, or field gate, or the like,
to watch that no help come to aid the owner or dweller, or to give
notice to the others, if help comes, this is burglary in them all, the
•/?. only actually brake and entered the house, and they all, in law,
are principals, and excluded from clergy by the statute of IS Eliz.
cap. 7. and so it is in robbery, as hath been said, 11 //. 4. 13. b.
Cromp 32. a. Co. P. C. p. 64.
lt\^. being a man of full age, take a child of seven or eight years
old well instructed by him in this villainous art, as some such there
be, and the child goes in at the window, takes goods out, and de-
livers them to t/2. who carries them away this is burglary
in ^. tho the child that made the entry, be not guilty by [ 556 1
reason of his infancy.
So if the wife, in the presence of the husband, by his threats or
coercion breaks and enters the house of B. in the night, this is bur-
glary in the husband, tho the wife, that is the immediate actor, is
excused by the coercion of her husband.
4. Domum mansionaletn : what shall be so said. [11]
[10] See note (5) •p. 551. It is essential to burglary that there should be an entry,
which may be made by introducing any part of the body into the house entered. Rex
T. Dams, R. Sf R. 499; Rex v. Bailey, Id. 341; Rex v. Parkts, 1 C. Sf f. 300; Rex
V. Roberts, 2 East's P. C. 487. By discharging or throwing any missile into the house,
or by introducing any instrument into the house, provided, that such instrument or
missile be used as a means of committing or attempting to commit a felony. Rex v.
Hughes, 1 Leach, C. C. 406 ; Pickering v. Rudd, 4 Camp. R. 220; Rex v. Rust, Mood.
C. C. 183. An entry may be by a door or window, although there be an inside door or
shutter to the same opening which is not broken, or an outside door or shuUer which is
not closed. Rex v. Bailey, Rex v. Parkes, and Rex v. Haines before cited.
[11] As to the Dwelling-house and Residence. — A dwelling-house includes,
1. All apartments under the same roof having a closed and covered communication
with the dwelling-house, whether the occupants of the apartments reside within the
dwelling-house or not. Sefton's case, R. ^ R.202; Com v. Chevalier, 1 Dane's Abr.
IM; CarreVs case, 1 Leach, 237 ; Rex v. Bailey, Moody, 23; Stock^s case, R. &• R. 185 •
2 Taunt. R. 3.39. ^ -/ } ,
2. All apartments under the same roof, the occupant of which resides in the dwelling,
house, whether they have a closed and covered communication with the dwelling-house
or not. Rex v. Burrowes, Moody, 274. Kel. 84. Brown's case, 2 East, P. C. 501.
2 Russ. 22. 2 Leach, 1016. note.
3. Any building within the curtilage of the dwelling-house, although not under the
same roof, nor adjoining the dwelling-house, nor having any closed and covered comma-
nication with it, provided it be occupied with it. Gibson's case, 2 Eist, 508. Hancock's
case, R. Sf R. 170. LHhgo's case. Id. 357. Rex v. Chalking, Id. 334. Waller's case,
Moody, 13. Clayburn's case, R. S^ R. 360. . Thompson's case, 1 Lew. 32.
4. It seems that a build ng or apartment is not excluded from bein<r part of a dwelling,
house merely because held by a different title. 2 Russ. 1 6. 2 East, P. C. 494. contra
infra, p. 559.
But a dwelling-house does not include,
5. An adjoining building not being within the curtilage of, nor having any closed or
covered communication with the dwelling-house; although this may not be settled when
556 HISTORIA PLACITORUM CORONA.
An indictment, quod felonice Sf hurglariter /regit <§• iniravit ec-
clesiani prochialem de D. ea intentione, Ǥ'C. is a good indictment of
burglary, for ecclesia is domus mansionalis, Co. P. C.p. 64. Dy. 99.
a.{d.)
(d) Lord Coke says it is the mansion-house of Almighty God, but this is only a quaint
turn without any argument, and seems invented to suit liis definition of burglary, viz.
the breaking into a ?na«s; on- house, whereas it appears from Spelinan loco supra citato,
and 22 Assiz, [)5. that it is not necessary to burglary, that a mansion-house be broken,
for the breaking of cliurches, the walls or the gates of the city is also burglary, and the
word mansionalis is only applicable to one kind of burglary, viz. the breaking of a private-
house, in which case it must be a dwelling-honse.
the occupant of the building resides in the dwelling-house. E<sginfon's case, 2 Leach,
913. 2 Russ. 57. Gibson's case, 1 Leach, 357. 2 East, P. C. 507. Brown's case,
2 East, 501. SomerviUe's case, 2 Deacon's. Abr. 1510.
G. Nor any other building not within the curtilage. Ellison's case. Moody, 336.
Hiles V. H'd. of Shrewsbury, 3 East R. 457.
7. Nor any building or apartment so occupied as to be the dwelling of another.
8. A building is within the curtilage of a dwelling-house when it is within the same
enclosure with it; (2 East, 493; 4 Black. Com. 225; Garland's case, 1 Leach, 144.
2 East, P. C. 493; Westicood's case, R. Sf R. 495; Parker's case, 4 John's R, 423;) or
when it is within an enclosure of which the dwelling-house makes part, and both open
into the enclosure; {Stallion's case. Mood. 398.) or when it makes part of an enclosure
surrounding the dwelling-iiouse, and opens into such enclosure; (Hancock's ca.se, R ^ R.
170.) pr when the dwelling-house or building make part of the enclosure; {Gibson's case,
2 East, P. C. 508; Lithgo's case, R. Sf R. 357; Walter's case. Moody, 13; Clayburn's
case, R. Sf R. 360; contra Ttcitty's case, 1 Hayw. 102; Wilson's lb. 242; Gunn's case,
1 Nott Sf McCord, 583.) and open into it, provided in each case that the enclosure is the
enclosure of the dwelling-house. See the Mass. Commissioners' Rep. Tit. " Burglary,"
pp. 8, 9, 10, 13, 14, 15, where the subject is much discussed in the notes.
The breaking and entering, to constitute a burglary, must be into the dwelling-house
of another, that is to say, a house in which the occupier or his family usually reside, or
in other words, dwell and lie in.
. It has been said tliat a church may be the subject of burglary, (3 Inst. 64 ; Hale, infra,
p. 556.) but this seems questionable, (see 1 Hawk. c. 38. s, 17.) the act 7 & 8 Geo. IV.
c. 29. s. 11. merely mentions "dwelling-house." There is an express provision as to
breaking and entering into and stealing chattels in a church, 1 Sf 8 Geo. IV. c. 29. s. 10.
A house under repair, or a building intended for and constructed as a dwelling-house,
in whicii no one lives, though the owner's properly is deposited there, is not a place in
which burglary can be committed, for it cannot be deemed his dwellmg-house until he
has taken possession and began to inhabit it, (1 Leach, 185, Fuller's case, 2 Easl's-P. C.
498; 1 Leach, 196, n.; Elsmore v. St. Briavells, 2 M. Sf R. 514. 8 B. Sf Cress. 461.
S. C.) nor will it make any ditFurencc if one of the workmen engaged in the repairs
sleep there in order to protect it; (1 Leach, 186, in notis ;) nor though the house is ready
for the reception of the owner, and lie sent his property into it preparatory to his own
removal, will it become for this purpose his mansion. Rex v. Hallard, 2 East, P. C. 498.
R. V. Thompson, lb. 2 Leach, 771.
So if the landlord of a house purchase the furniture of his outgoing tenant, and pro-
cure a servant to sleep there in order to guard it, but without any intention of making
it his own residence, a breaking into the house will not amount to burglary. R.v. Davis,
2 LeacA, 876. Rex v. Smith, 2 East's P. C. 497. Rex v. Fuller, Id. 498. 1 Leach,
196.«.
Where neither the owner nor any of the family have slept in the house, it is not his
dwelling-house so as to maJie the breaking into it burglary, though he had used it for
ills meals and all purposes of his business. Rex v. Martin, R. Sf R. 108.
If a man dies in his leasehold house, and his executors put servants in it, and keep
them there at board and wages, burglary may be commuted in breaking it, and it may
be laid to be the executor's property. 2 East's P. C. 499.
It is not absolutely necessary to make it burglary that any person should be actually
within the house at the tii,ne the otfcnce is committed. For if the owner leaves it
HISTORIA PLACITORUM CORONA. 556
If Jl. have a dwelling-house, and upon occasion he and all his
family are absent a night or more, and in their absence in the night
a thief breaks and enters the house to commit felony, this is burglary.
Co. P. C. ribi supra.
• So if./?, have two mansion houses, and is sometimes with his.fa-
animo rewrtendi, though no person resides there in his absence, it vCill still be his man-
sion, i Havok. C.51. s, II.
As if a man has a house in town and another in the country, and goes to the latter in
the summer, the nocturnal breaking into either with a felonious design will be buro-la-
rious. Fast. 77. Nulbrowti's case; 2 EasVs P. C. 406. Com. v. Brown, 3 Rawle R.2Q7.
so if he goes a journey. R. v. Murray, 2 EasVs P. C. 496.
And though a man leaves his liouse, and never means to live in it again, yet if he uses
part of it as a shop, and lets his servant and family live and sleep in anotiier part of it
for fear the place should be robbed, and lets the rest to lodgers, the habitation, by his
servant and. family, will be a habitation by him, and the shop may still be considered as
part of his dwelling-house. R. v. Gibbons, R. &{ R, 442. •
But where the prosecutor, an upholsterer, left the house in which he resided with his
family, without any intent of returning to live in it, and took a dwelling-house elsewhere,
but still retained the former house as a warehouse and workshop, two women employed
by him as workwomen in his business, and not as domestic servants, slept there to take
care of tlie house, but did not have their meals there, or use the house for any other
purpose than sleeping in it as a security to the house, the judges held that this was not
properly described as the dwelling-house of the prosecutor. Rex v. Pltuinagan, R. & R.
187. Forsythe v. The State, 6 Ham. 22. .
The occupation of a servant in that capacity, and not as tenant, is in many cases the
occupation of the master, and will be a sufficient residence to render it the dwelling-
house of the master. Rex v. Stock, R. 8^ R. 185. Rex v. Wilson, R. Sf R. 115.
Where the prisoner was indicted for burglary in the dwelling-house of J, B. ; J. B.
worked for one W. who did carpenter's work for a public company, and put J. B. into
the house in question, which belonged to the company, to take care of it, and some mills
adjoining. J. B. received no more wages after than before he went to live in the house.
It was held not rightly laid. R. v. Raulings, 7 Car. Sf P. 150.
If a servant live in the house of his master, at a yearly rent, the house cannot be de-
scribed as the master's house, though it is on the premises where the master's business
is carried on, although the servant has it because of his service. The servant is in such
a case the tenant of the master, who might have distrained for rent, and could not arbi-
trarily have removed him; and consequently, the occupation of the servant cannot be
deemed the occupation of the master. R. v. Jains et al. R. <^- M. 7.
Every permanent building, in which a party may dwell and lie, is deemed a dwelling-
house, and burglary may be committed in it. A set of chambers in an inn of court or
college is deemed a distinct dwelling-house for this purpose. 1 Hale, infra, 1 Hawk. c. 38.
s. 11.
So even a loft over a stable, used for the abode of a coachman, which he rents for his
' own use, and that of his family, is a place which may be burglariously broken. Rex v.
Turntr, 1 Leach, 305.
So also burglary may be committed in a lodging-room, (1 Leach, 89,) or in a garret
used for a workshop, and rented together with an apartment for sleeping, and if the land-
lord does not sleep under the same roof, the place may be laid as the mansion of the
lodger. 1 Leach, 237.
But burglary cannot be committed in a tent or a booth, in a market or fair, even al-
though the owner lodire in it. (1 Hawk. c. 38. s. 35. infra 557,) because it is a temporary,
not a permanent edifice. But if it be a permanent building, though used only for the
purposes of a fair, it is a dwelling-house. Rex v. Smith, 1 M. Sf Rob. 256. T/ie State v.
Wilson, 1 Hayw. 242. State v. Twitty, Id. 102. Slate v. Carrier, 5 Day. R. 131. State
V. Brooks, 4 Conn. R. 446. State v. Bailey, 10 Id. 144.
, And all outhouses, within the same curtilage with the dwelling-house, occupied and
immediately connected, and communicating with it, may be the subject of burglary, and
t!ie burglary in such cases may be alleged to have been in the dwelling-house. Formerly
this was the case, in respect to all buildings within the curtilage. But by stat. 7 & 8
556 HISTORIA PLACITORUM CORONiE.
mily at one, and sometimes at the other, the breach of one of them
in the absence of his family from thence is burglary, (e) 4 Co. Rejj. 40.
a. 39 Eliz. Dull. cap. 09. p. 254, (/)
If ./?. have a chamber in a college or inn of court, where he
(e) Even tho he liad never lodged in it, but v\;as removing his goods there in order to
lodge in it. Kel. 46.
(/) New Edit. p. 488. See also Poph. 52. Mo. 660.
Geo. IV. c. 29. s. 13,* "No building, although within the same curtilage with the
dwelling-house, and occu|)ied therewith, shall be deemed to be part of such dwelling-
house for the purpose of burglary, or for any of the purposes aforesaid, unless there shall
be a communication between such building and dwelling-house either immediate or by
means of a covered and inclosed passage leading from the one to the other." This pro-
vision made an important alteration in the law, as it previously stood, for no communi-
cation as that pointed out by the act was absolutely necessary at common law, to con-
stitute burglary. JVhere the prosecutor's liousc consisted of two rooms for living in,
another room used as a cellar, and a wash-house on the ground floor, and of three bed-
rooms up stairs, one of them over the wash-house, and the bed-room over the house-place
communicated with that over the wash-house, but there was no internal communication
between the wash-house and any of the rooms of the house, but the whole was under the
same roof, and the defendant broke into the wash-house, and was breaking through the
partition wall between the wash-house and the house-place ; it was holdeh that the de-
fendant was properly convicted of burglary in breaking the house. R. v. Burrows, R. Sc
M.274.
To be within the meaning of the statute, the building must be occupied with the house
in the same right, and therefore where a house let to, and occupied by A. adjoined and
communicated with a building let to, and occupied by A. Sf B., it was holden that the
building could not be considered a part of the dwelling-house of A. Rex v. Jenkins, R.
Sf R. 244.
If there be any doubt as to the nature of the building broken and entered, a count may
be inserted for breaking and entering a building within the curtilage.
Persons may temporarily lodge or sleep by night in a building for some particular
purpose, or on some special occasion, without thereby necessarily making the same, or
any part thereof a dwelling-house. The cases upon which this doctrine is founded are
as follows: Willia7n Fuller was indicted for burglary in the house of Mr. Holland. The
house was a new one, finished all but painting and glazing. A workman who was con-
stantly employed by Mr. Holland, but not one of his family, slept in it for the purpose
of protection; but no part of Mr. Holland's domestic family had yet taken possession of
it. 1782, 2 East, /'. C. 498; 2 Kuss. 17; 1 Leach, 186. vote. The prosecutor had
hired the house, and put sundry articles of merchandize into it, and on the night of the
offence, and six nights before, had procured two hair-dressers (none of his own family)
to sleep there to take care of the goods and merchandize; but neither he nor any
of his family had ever slept there. 1765, Harrises case, 2 East, P. C. 498; 2 Leach,
701. Davis was indicted for larceny in the house of Thomas Pierce. Pierce purchased
furniture of a tenant who had just left his house, for the use of his future tenants; not
intending to reside there himself He put in his man to take care of the furniture until
a new tenant should take possession. It does not appear that he was a domestic servant.
1800, Davis's case, 2 Leach, 876; 2 East, P. C. 499 ; 2 Russ. 17.
A tradesman removed to another house, and intending to keep the house which he had
Icfl as a warehouse and workshop, he put into it two women who worked with him at
his business as an upholsterer, to sleep there and take care of the house. 1810, Flana-
gan's case, R. Sf R. 187.
The exact point decided in these cases, was that the houses were not the dwelling-
houses of the prosecutor. But they are sometimes cited to show that the houses were
* The following decisions will show how the law was before the passing of this act.
Rex v. Lithgo, R. S( R. 357. Hex v. Cholking, R. Sf R. 334. Rex v. Clnyhurn, Id. 360.
Egginton's case, 2 East's' P. C. 424. 2 B. Sf l\ 508. 2 Leach, C. C. 913.5". C. Ry S( Mood.
C. C. 13. Brown's case, 2 East's P. C. 493. Garland's case. Id. 493. 1 Leach, 144. Rex
V. Westnard, R. Sf R. 495. Rex v. Bennett, Id. 289. Rex v. Duns, Idem. 322.
HISTORIA PLACITORUM CORONJG. 556
usually lodgeth in term-time, and in his absence in the vacation his
chamber or study be broken open, 8fC. this is burglary, and the in-
dictment shall suppose it domus matisiGna/is Ji. Co. P. C.p. Q5.
14 Car. 1. Jludley's case before cited. (^)
{g) Cro. Car. 473. by the name of Evans and Finch.
not dwelling-houses at all, and the statement of some of the cases renders it probable that
such was the opinion of the court.
Upon the first three of these cases, the fifth report of the English Commissioners on
Criminal Law contains the following remarks, (p. 4.):—" In some of the cases in which
this point" (what constitutes a dwelling-house,) " has been discussed, the house was slept
in, not by the owner, but by a person employed by him for a particular purpose, viz. the
protection of the goods, and it was held, that as neither the owner nor any of his family
had slept there, the house could not be regarded as such a dwelling-house as could be
made the subject of burglary. We do not conceive that these decisions are supported by
just principles. It appears to us that every one who iiihabits, lodges in, or uses a house
as his dwelling in the night-time, is entitled to the piWection of the law; and that he is
equally so entitled, although his object in being there may be solely to protect the pro-
perty; and farther, that such protection ought equally to be afforded, whether the owner
or occupier himself lodge there, or employ an agent or servant to do so for the same pur-
pose. The fundamental principle of the law is the protection of the dwelling-house; the
proper and obvious tests for deciding whether a building be or be not a dwelling-house,
must consist in its having been actually used as such, and the continuing intention still
to use it as such. Upon the question, what kind of use ought to give the character of a
dwelling-house to a building, we conceive the proper answer to be, as regards the crime
of burglary, the protection of its inmates from violence during the season of natural
repose."
'' It cannot, however, be doubted, that to make the question of dwelling-house or no
dwelling-house to depend upon the particular duties to be performed by a party sleeping
in a house, would be inconvenient, and to deny protection because the agent employed
was not a domestic servant, or because he was placed there to discharge a particular
duty, would be unreasonable; and we have therefore ventured to suggest a more certain
rule."
The rules on this subject reported by the English Commissioners are as follows : —
Art. 14. The motive or object for using such building for the purpose in the last pre-
ceding article mentioned, (of lodging or dwelling therein by night,) shall not be deemed
material to the oiFence.
Art. 16. The mere casual occupation of any such building, -without the consent or
license of the owner or occupier thereof, that such building should be used, either con-
tinuously or at intervals, for the purpose of dwelling or lodging therein by night, shall
not constitute such building a dwelling-house.
As to Ownership in the House. — It is necessary to ascertain to whom the mansion
belongs, and to state it with accuracy in the indictment. If the rule, observes Mr. East,
(2 Easl^s, P. C. 499, 500,) by which to ascertain this ownership may be compressed with
sufficient discrimination into a small compass, I should say, generally, that where the
legal title to the whole mansion remains in the same person, there if he inhabit it either
by himself, his family or servants, or even by his guests, the indictment must lay the
offence to be committed against his mansion. And so it is if he let out apartments to
inmates who have a separate interest therein, if they have the same outer door or en-
trance into the mansion in common with himself But if distinct families be in the •
exclusive occupation of the house, and have their ordinary residence or domicile there
without any interfeitnce on the part of the proper Owner, or if they be only in possession of
parts of the house, as inmates to the owners, and have a distinct and separate entrance,
then the offence of breaking, &c. their separate apartments must be laid to be done
against the mansion-house of such occupiers respectively.
Nice questions frequently arise as to whether a party dwells in and occupies a house
in his own right or as the servant of another. A workman was employed at I5s. a
week wages, and a cottage free of rent and taxes for himself and family to dwell in,
upon an indictment for burglary, the judge at the trial held, that as the workman occu-
VOL. I. — 49
556 HISTORIA PLACITORUM CORON.^.
So it is, if./?, hires a chamber in the house of B. for a certain time
wherein he lodgeth, and during the time contracted for, it is broken
open, &rc. this is burglary, and the indictment shall suppose it to be
domum mansionalem oi td.iji)
Qi) Chief Justice Keeling was of a different opinion, and thought in such case the in-
dictment ought to be laid for breaking domum mansionalem of B. for while there is but
one entrance, it is but one dwelling-house, tho there be several inmates, but otherwise it
is, if a man divides some rooms from the rest of the house, and make another door to
those rooms, Kel. 83. Sfc.
pied this cottage for his own benefit, and not for the use or benefit of his master, it wa9
well described as the dwelling-house of the workman; and upon a reference to the
judges, they were of the same opinion. R. v. Joblin, R. Sf R. 525; and see R.\.
Smythe, 5 Var. Sf P. 202 ; R. v. Jarvis, R.SfM.l.
Where a toll-gate house, erected by the trustees of a turnpike, as and for the dwelling-
house of the person who might be, employed to collect the tolls at a particular gate, was
broken and entered in the night-^me; and upon an indictment for the burglary it ap-
peared, that the trustees had let the tolls to Ward, and Ward had employed Ellis (at weekly
wages, with the privilege of living in the toll-house in question) to collect them, and that
Ellis dwelt in the house for that purpose, the indictment having described this as the
dwelling-house of Ellis, the judges held the description to be correct, for Ellis had the
exclusive possession, it was unconnected with any premises of Ward^s, and Ward did
not appear to have any interest whatever. Rex v. Camjield, R. Sf M. 42.
And where a servant lived rent-free in a house belonging to his master, and his master
paid the taxes, and his master's business was carried on in the house, but the servant
and his family were the only persons who slept in the house, and tiiat part of the house
in which his master's business was carried on was at all times open to those parts in
which the servant lived ; upon an indictment for breaking and entering that part of the
house in which the master's business was carried on, it was held, that it might be
described as the servant's house, but it was not decided that it might not also be
described as the house of the master. Rex v. Witt, R. Sf M. 248.
If a servant live in the house of his master at a yearly rent, the house cannot be
described as the master's house, though it be on the premises where the master's busi-
ness is carried on, and although the servant has it because of his service. Rex v. Jer-
vis, R. S( M. 7; and see R. v. Smythe, 5 Car. ^ P. 202.
G. Brown was indicted for burglary in the dwelling-house of M. Grdydon, and steal-
ing thereout oats. A second count stated it to be in the dwelling-house of T. Truinhall.
Graydon, a farmer, had a dwelling-house in which lie lived, a stable, cow-house, cottage,
and barn, all in one range of buildings in the order mentioned and under one roof, but
they were hot inclosed by any wall or court-yard, nor was there any communication
from one to the otlier within. TrumhalVs family resided in the cottage by agreement
witji Graydon when he went into his service ; but Trumbull paid no rent, only an abate-
ment was made in his wages on account of his family residing in tiie cottage. Some
corn having been missed out of the barn, Trumbull and another person put a bed in the
barn and slept there, and a few nights after they had so done, the prisoner unlocked the
barn-door and took away a quantity of oats. After conviction judgment was respited,
upon a doubt whether it could be considered as the dwelling-house either of Graydon or
Trumball; upon a reference it was agreed (Mick. T. 1787) by all the judges, that the
sleeping in the barn made no difference. But tiiey held, (Buller, J. doubling,) that this
was no more than a license to Trumball and servant to lodge in the cottage, and not a
letting it to him, and that the barn, as well as the rest of the buildings, being under the
same roof, continued parts of the mansion-house of Graydon. Ancf many of the judges
inclined to think, that if tliere had been a demise of the cottage to Trumball, the barrt
would still have continued part of Graydon's dwelling-house in point of law. G. Brown's
case, 2 EusVs P. C. 501.
So in another case, where the servant of three partners in trade had weekly wages and
particular rooms assigned to liim as lodging for himself and his family over the bank and
brewery office of his employer, with which his lodging communicated by a trap-door and -
a ladder, it was holden by the twelve judges that a burglary committed in the banking-
HISTORIA PLA ITORUM CORONA. 557
But if, in the king's house at Whitehall, or in the great house
of any nobleman, there be apartments or lodgings assigned to the
jeweller, treasurer, steward, chaniberlain, Sfc. and any of these lodg-
ings be broken up burglarily, the indictment must suppose it to be
room was well laid as in the dwelling-house of the three partners. Hex v. Stockton and
others, 2 Taunt. 339. 2 Leach, 1015. Russ. Sf Rij. 185. S. C. nom. Rex v. Stock.
A gardener lived in the liouse of his master, quite separate from the dwelling-house
of bis master, and the gardener had the entire control of the house he lived in, and kept
the key, it was held that on an indictment for burglary, the gardener's house might be
laid either as his or his master's. Reg. v. Rees, 7 Car. Sf P. 568.
If a house be tenanted by a married woman, it must.'in all cases, be deemed the house
of her husband, and not of her, even although she live separate from her husband. Farr^s
case, Kd. 43. 2 East's P. C. 504. and see Boggett v. Frier, 1 East, 301. Rex v. Smyths,
5 Car. S( P. 202.
Where a married woman lived apart from her husband, upon an income arising from
property vested in trustees, for her separate use, the judges held that a house which she
had lived in, was properly described as her husband's dwelling-house, though she paid the
rent out of her separate property, and tlie husband had never been in it, Rex v. French
Russ. Sf Ry. 491. . ,
Upon an indictment for burglary in the dwelling-house of George Gillings, it appeared,
that Gillings owned and had built the house in question, but had never lived in it, that
suspecting his wife of infidelity with one Websdale, they agreed to separate, and he told
her she might live in the house in question, and gave her a bed and bedding, &,c., for the
purpose; she afterwards lived and cohabited with Websdale in the house with the know-
ledge of her husband; Websdale paid the expenses 'of housekeeping, but never paid any
rent for the house to Gillings. The judges held that the house was properly described
as the dwelling-house of Gillings. R. v. Wilford, Russ. ^ Ry. 517.
A prisoner was indicted for breaking into the house of Elizabeth A, and stealing her
goods. There was a second count, laying the property of the goods in the Queen. It
was shown by proof of the record, that the husband of Elizabeth A. had been convicted
of felony, and it was also proved that he was still in prison, under the sentence, and that
the articles stolen were his before his conviction, and had remained in the house from
the time of his apprehension, and that the wife continued in possession of the house and
goods till they were stolen by the prisoner. It was held that the prisoner might be pro-
perly convicted of larceny on the second count, which laid the property of the goods in
the queen, although there had been no office found, and that he could not be convicted
of housebreaking, as that part of the indictment whicti laid the goods and the house to
be those of Elizabeth A. could not be supported. Reg. v. Whitehead, 9 Car. Sf P. 429.
A house, in part of which a man lives, and other parts of which he lets to lodgers, may
be considered and described as his house, though he has taken the benefit of the Insol-
vent Debtor's Act, and executed an assignment, including the house, if the assignee has
not taken possession: at least, no objection can be made, if in other counts it be stated
as the house of the assignee, and in others of the lodger, in whose room the offence
was committed. Rex v. Ball, R. Sf M. C. C. 30.
In the case of persons employed by the crown or public companies, the same rule pre-
vails as in other cases. If burglary be committed in tiie Invalid Office at Chelsea, in
Somerset House in Whitehall, in any of the public offices or royal palaces, the mansion
must be laid as the Queen's. 1 Leach, 324, and in notis, Rex v. Williams, ante p. 522.
The same principle applies to corporations, for if a burglary be laid to be in a dwelling-
house of one of the officers belonging to the African Company, it will be bad, although a
corporation cannot be resident. Kel. 37. 1 Leach, 324, in notis. 2 East's P. C. 504.
But it has been holden that if the agent of a trading company reside in the house of
his employers in town, it may properly be laid as his dwelling. Rex v. Margethe, 2
Leach, 930.
So a city hall may be described as the residence of the clerk to the company to whom
it belongs. Id. in notis.
The ground for these two last decisions is stated to be that the punishment of burglary
was intended to protect the actual occupant from the terror of disturbance during the
hours of darkness and repose, but it would be absurd to suppose that that terror, which is
557 HISTORIA PLACITORUM CORONA.
domus mansionahs of the king, or of him that is truly lord or pro-
prietor of the house, for they have the use of the lodgings as servants
only, and not as owners: Hungale's case before cited. (?)
(i)p. 522.
of the essence of the crime could, from a breaking and entry in one place, produce an
effect in another. 2 Leach, 931.
J, Picket was indicted for burglary in the dwelling-house of the East India Company,
which is inhabited by their servants, and he was convicted and executed. O. B. April,
1765. 2 East's F. C. 501.
C. Maynard was indicted for burglary in the mansion-house of the master, fellows and
scholars of Bennet College in Cambridge. It appeared that he broke into the buttery of
the college, and there stole some money; and it was agreed by all the judges, upon a
reference to them, that it was burglary. C. Maynard's case, 2 East's P. C. 501.
If, by an actual severance, all internal communication be cut off, tlie partitions become
distinct houses, so that if one house is divided to accommodate the families of two part-
ners, though the rent and taxes of the whole are paid out of tlie common fund, each
part will be regarded as a mansion. R. v. Jones, 1 Leach, 537. 2 East's P. C. 504.
Tracy v. Talbot, Salk. 532. ■ .
But a house, the joint property of partners in trade, in which their business is carried
on may be described as the dwelling-house of all the partners, though only one of the
partners reside in it. Rex v. Athea, R Sf M. 329.
Where inmates have several rooms in a house of whicli they keep the keys and inhabit
them severally with their families, yet if they enter at one outer door with the owner,
these rooms cannot be said to be the dwelling-houses of the inmates, but the indictment
ought to be for breaking the house of tlie owner. But if the owner inhabits no part of
the house, or even if he occupy a shop or a cellar in it, but do not sleep therein, the
apartments of such shall be considered as their respective dwelling-houses. CarreWs
case, 1 Leach, 237. Trapshaw's case, 1 Leach, 427. and see 1 Hawk, c. 38. s. 26.
If the owner who lets out apartments in his house to other persons, sleep under the
same roof, and have but one outer door common to him and his lodgers, who are only in-
mates, all their apartments are parcel of the one dwelling-house of the owner. Kel. 84.
But if the owner do not lodge in the same house, or if he and the lodgers enter by differ-
ent outer doors, the apartments so let out are the mansion for the time being of each
lodger respectively, even though the rooms are let by the year. 2 East's P. C. 505.
Where a servant of the prosecutor dwelt in a part of the house, and the rest (excepting
the shop) was let off to lodgers ; the judges held tliat tiie shop, which was in the prose-
cutor's occupation, was properly described as the dwelling-house of the prosecutor. Rex
V. Gibbons, Russ. Sf Ry. 442.
Where the prosecutor having a dwelling-house with a shop adjoining it, with sepa-
rate entrances from the street, but the shop having a back door into a passage in the
house, let the shop to his son, who used it as a place of business only, and did not reside
there; a burglary having been committed in the shop, the judges held that it was
properly described in the indictment as the dwelling of the father. Rex v. Seytorif
Russ. Sf Ry. 202.
If the owner let off a part, but do not dwell in the part he reserves for himself, then
the part let off is deemed in law the dwelling-house of the party who dwells in it, whe-
ther it communicates internally with the oilier part or not ; but the part he has reserved
for himself is not tiie subject of burglary, it is not his dwelling-house, for he does not
dwell in it, nor can it be deemed the dwelling-house of the tenant, for it forms no part of
his lodging. 1 Leach, 89, 237, 437.
Where the coachman rented the loft over a coach-house and stables, and he and his
family resided in it, a burglary committed in it was liolden to be well laid, to have been
committed in the dwelling-house of the coachman. Rex v. Turner, 1 Leach, 305.
The governor of the workhouse at Birmingham, under a contract for seven years, with
the guardians and overseers of that place, occupied and dwelt in the governor's house
with the exception of one room, whicii the guardians and overseers reserved for them-
selves as an office, and three other rooms as store rooms: the clerk of the guardians and
overseers kept one key of the office, the governor another, for the purpose of securing
the effects in case of fire, and the room was cleaned and taken care of by the governoi''8
HISTORIA PLACITORUM CORONiE. 557
And so it is, if t/^. comes to the inn of B. and there hath a chamber
appointed for liis lodging, and this chamber is broken up burglarily,
it shall suppose it to be domus tJiansionalis o{ B.ihe inn-keeper, be-
cause the interest is in him, and Ji. hath only the use of it for his
lodging, without any certain interest.
A tent or booth in a fair or market is not such a domus mansio'
nalis, wherein burglary may be committed, but robbery therein com-
mitted, the owner, his wife or servants being therein, is specially
exempted from clergy by the statute of 5 S^ 6 E. 6. cap. 9. before
mention'd. Co. P. C. p. 64.
If./?, have a shop parcel of his mansion-house, and it be broken
open m the night, S^c. it is a burglary, and the indictment shall sup-
pose, that he brake and entred donium mansionalem of A. for it is
parcel thereof.
But if .^. let the shop to B. for a year, and B. holds it, and works
or trades in it, but lodgeth in his own house at night, and this shop
servant, this office being broken and entered in the night time, ten of the judges held
that it could not be described as the dwelling-house of the governor. Rex v. Wilson,
Russ. Sf Ry. l\5.
So where the owner of a dwelling-house, warehouse, and counting-house within the
same curtilage, let his <lvvelling-house to his warehouseman, at a yearly rent, the count-
ing-house and wureliouse being broken and entered in the night time, the judges heJdt
that this was not burglary, that tlie counting-house and warehouse could not be described'
as the dwelling house of the master, because the dwelling-house was occupied by the
warehouseman as tenant and not as servant, nor could they be described as the dwelling-
house of the tenant, for they formed no part of his holding. Rex t. Jarvis, R. Sf M. Sea
R. v. Smythe, 5 Car. Sf F. 202.
If the owner let the whole of a dwelling-house, retaining no part of it for his or his
family's dwelling, the part each tenant occupies and dwells in is deemed in law to be the
dwelling-house of each tenant, whether the parts holden by the respective tenants commu-
nicate with each other internally or not. Thus, where the owners of a house divided a shop
into two by a partition, each having a door opening into the street, and let one of them
and some rooms in the house to Choice, and the other with the remainder of the house,
to Ryan, at the end of each shop was a door opening into a common passage that led to
one common staircase. Choice paid i^lOO a year, and the taxes for the whole house, for
his part. Ryan paid £80 a year for his : each had his separate family, separate kitchen,
&.C.; but the rooms occupied by each opened on the common staircase above-mentioned.
Upon an indictment for burglary, it appeared that the prisoner entered at the window of
the common staircase, unlocked the door of Ryan's shop, and entered it. The judges
held, that the place was rightly described in the indictment as the dwelling-house of
Ryan. Rex v. Baily, R. ^ M. 23.
One Richards let her dwelling-house to her son Josiah, and a warehouse communicat-
ing internally with the dwelling-house to Josiah and his younger brother, at a separate
rent. Josio/t lived in the dwelling-house, and constantly used the communication between
that and the warehouse, both brothers carried on tiieir joint business in the wareiiouse :
the warehouse being broken and entered in the night time, the judges held that it could
not be deemed a part of the dwelling-house, as the dwelling-house was holden under a
demise to Josiah alone, and he alone dwelt in it, and the warehouse was holden under a
distinct demise to liimself and his brother. Rex v. Jenkins, R. Sf R. 244.
Where a lodger occupied a sleeping-room on the first floor and a workshop in the
attic, and the rest of the house was occupied by other lodgers, a burglary in the work-
shop was holden by the judges to be well laid, to have been committed in the dwelling,
house of the lodger who rented it. Rex v. Carrell, 1 Leach, 237.
A man cannot be indicted for burglary in his own house; therefore, if the owner of a
house break and enter into the room of his lodger, and steal his goods, he can only be
convicted of the larceny. Kel. 84. 2 Easfs P. c'^ ^Q2, 506.
557 HISTORIA PLACITORUM CORONA.
is broken open, S,'C. the indictment cannot be, that domum mansin-
nalem oi A.fregit, for it was severed by tlie lease daring the time, (a;)
but then whether he may be indicted for bnrglary as in the domus
mansionalis of B? and certainly it is agreed on all hands, if B. or
his servant sometimes lodge in the shop, it is burglary, and it shall be
supposed domtis mansionalis of B. and this is common experience.
But suppose he never lodges there, but only works or
\_ 558 ] trades therein in the day time, and he or his servants never
lodge there at night, whether this be a burglary to break
and enter this shop to commit a felony?
And certainly it was in this case antiently held burglary, M 37 Sf
38 Eliz. B. R. Calebs ca§e,(m) an indictment, quod shopam cujus-
dam Ricardi burglarittr et felonict f regit <§• intravit (§'C. it was ad-
mitted, for the matter, by the court of king's bench to be good ; but
doubted, whether it was good, because it was cujusdum Ricardi
without mentioning his sirname, and with this also agrees my lord
Coke in terminis, Co. P. C. p. 64. in these words. But a shop lohere-
in any person doth converse, being parcel of a mansion-house or
not parcel, is taken for a mansion-house.
But 7! 17 Juc. Hut ton'' s Rep. 33. it is ruled to be no burglary to
break open such a shop, and accordingly the practice hath always
gone at Newgate sessions since my time or observation, and to this
day it is holden no burglary to break open such a shop; but if the
shop keeper, or his servant, usually or often lodge in the shop at
night it is then donius mansionalis, m which a burglary may be
committed.
Domus mansionalis doth not only include the dwelling-house,
but also the out-houses, that are parcel thereof, as barn, stable,
cow-houses, dairy-houses, if they are parcel of the messuage, tho
they are not under the same roof, or joining contiguous to it; and
therefore, if such stable or out-house belonging to the dwelling-
house be broken- open in the night-time with intent to steal, it is bur-
glary, and with this agrees Co. P. C. p. 64, 65. Dalt. cap. 99. p. 254,
255. where for breaking open a back-house of Robert Castle^s, eight
or nine yards distant from the dwelling-house, only a pale reaching
between them, two were arraigned and condemned for burglary;
and so it was agreed by all the judges in the time of chief justice
Hydelast 1665, and the law was accordingly, and the contrary prac-
tice in one much blamed ; and altho it was said by some, that it had
not been so used, and that the statute of 4 S,^ 5 P. 4' M. cap. 4. dis-
tinguished between a dwelling-house and a barn, yet at
[^559 3 length all the judges agreed, that the felonious breaking of
a barn, parcel of a messuage, to steal corn, was burglary ac-
cording to my lord Coke, ubi supra, and with this agrees 2 E. 6. B.
Cor one ISO.
But if the barn, or stable, or cow-house be no parcel of the mes-
suage, as if a man takes a lease of a dwelling-house from t^. and of
y Qc)Kel. 84. (j«) Mo. 466.
HISTORIA PLACITORUM CORONA. 559
a barn from B. or if it be far remote from the dwelling-house, and
not so near to it as to be reasonably esteemed parcel thereof; as if it
stands a bow-shot off from the house, and not within, or near the
dirtilage of the chief house; then the breaking of it is not burglary,
for it is not dumus mansionalis, nor any part thereof.
An indictment that noctanter clausum or cartilagium felonice ^
burglaritlr /regit ad occidendum ox furandum is not good, and yet
22 ^ssiz. 95. burglary is defined to break houses, churches, walls,
courts, or gates in time of pes.ce.{n)
So that by that book it should seem, that if a man hath a wall
about his house for its safeguard, and a thief in the night break the
wall or the gate thereof, and finding the doors of the house open, he
enters into the house, this is burglary; but otherwise it had been, if
he had come over the wall of the court, and found the door of the
house open; then it had been no burglary.
5. To make up burglary, it must not be only to break and enter a
house in tlie night-time, but either a felony must be committed in the
house, or it must be to the intent to commit a felony.[12]
If the indictment be, quod domiim mansioixalem J. S. felonice 4'
burglariter fregit ^' intravit, <§• ad tunc <§• ibidem certain goods of
J. S. felonict 4* burglariter furatus fait, cepit Ǥ' asportavit, the
indictment compriseth two offenses, viz. burglary and felony, and
therefore he may be acquitted of burglary, if the case be so, upon
the evidence, and found guilty only of the felony, and then he shall
have his clergy.
Or he may be acquitted of the felony, but then qusere,
whether he can be found guilty of the burglary, because [560 J
tho where the indictment compriseth burglary and felony,
the indictment is good, tho it be not supposed in the indictment, that
(n) This was antiently understood only of the walls or gates of the city: vide Spel-
mati tra verba burglaria; if so, it will not support our author's following conclusion,
wherein he applies it to the wall of a private house.
[12] See ante, note [I] p. 548. The punishment for this offence in England is now
regulated by 7 Will. IV. 6f 1 Vict. c. 86, s. 3, by which it is enacted, "That whosoever
shall be convicted of the crime of burglary shall be liable, at the discretion of the court,
to be transported beyond the seas for the term of the natural life of such offender, or
for any term not less than ten years,- or to be imprisoned for any term not exceeding
three years."
To the punishment of imprisonment may be added hard labour, with or without soli-
tary confinement: such confinement not exceeding one month at any one time, nor three
months in any one year. Id. sect. 7.
For burglary and assaulting with intent to murder, <fec. the offender shall suffer
death. 7 Will. IV. Sf 1 Vict. c. 86, sect. 2; see Reg. v. Watkins, 2 Mood. C. C. 217;
Res^. X. Polbj, 1 Car. Sf Kir. 77.
For the U. S. Statutes see the act of March 3d, 1825, sect. 4; Peters^s Statutes at
Large, vol. 4, p. 1U7. For the statutes of Massachusetts, see Rev. Stat. c. 126, sects. 9,
10. For the statutes of New York, see 2 Rev. Stat. 668, s. 10, et seq. For the statutes
of Nero Jersey, see Statutes of New Jersey, 1847, Tit. Crimes and Piinishnents, § 33,
J?. 266. For the statutes of Pennsylvania, see Act of Slst May, 1718, Stroud's Piird.
144 Gth Ed., 155 1th Ed. Tit. Burglary. For the statutes of Virginia, see 1 Rev. Code,
eh. 17, s. 24.
560 HISTORIA PLACITORUM CORONA.
it was ed intentione ad bona furandiim, for the act of theft being
charged at the same time, it is a sufficient evidence of his intention ;
but when he is acquitted of the felony, then, there being nothing ex-
pressly charged in the indictment, that burglariter /regit, SfC. ea
intentione ad bona ^'c. felonicl fiirandufn, it stands single as if the
indictment had been of single burglary, in which case the clause of
ed intentione ad furandum ^'C. had been necessary to complete a
single burglary. ,
It seems therefore necessary in such case not only to charge him,
that in nocte S,- burglariter <^ felonice domurn, 8fc. fregit &,■' intra-
vit, Sf bona S^c. cepit, but also farther to say ed iyitentione ad bona
4' catalla fyc. in eddem domo existentia felonicl 8c burglariter
jfurandum, and to add also the particular felony, ^ ad tunc Sf
ibidem unum scyphuni argenteum <§'c. and then,tho he be acquitted
of the felony, the rest of the indictment stands good against him as
a simple burglary, and he may be convicted of it, tho acquitted of
the felony.
And I think that as the offenses of burglary and felony may be
joined in the same indictment, so three offenses may be joined in the
same indictment, and if he be acquit of the one, he may be con-
victed of the other two, and it may be of use to exclude a male-
factor of his clergy where the offense is great, as namely for bur-
glary, for felony, and for felony upon the statute of 5 <§' 6 E. 6.
cap. 9. for there may be an offense against that statute, which will
exclude from clergy, and yet not amount to burglary; and the form
of the indictment may run thus. Quod ^. prima die Februarii anno
regni domini Caroli &c. in nocte ejusdem diei vi & arrnis apud B,
felonice & burglariter domum mansionalem fregit & intravit ea in-
tentione ad bona & catalla ejusdem B. in eadem domo existentia
felonice & burglariter furandum, capiendum & asportandum, & ad
tunc & ibidem vi & armis unum scyphum argenteum ejusdem B. in
eadem domo existentem felonice & burglariter furatus fuit, cepit &
asportavit, ipso B. ac uxore, liberis & famulis suis in eadem domo
tunc existentibus, contra pacem, &c.
And note, that such an indictment need not conclude con-
[ 561 3 tra formam statuti, it is sufficient that it brings the case so
within the statute, as to exclude clergy; and so, upon the
statute of 23 H. 8. cap. 1.
And upon this indictment, if it falls out upon the evidence that he
is guilty of the burglary, but not guilty of the stealing, he may be
convict of the burglary, and so ousted of clergy, tho he be found not
guilty of the felony : again, tho he be found not guilty of the burglary,
because, it may be, the breach of the house was in the day-time, the
dweller, his wife or servants in the house, yet he may be found guilty
of the felony within the qualifications contain'd in the indictment
pursuant to the statute of 5 <^ 6 ^. 6. and so ousted of his clergy, for
that is not confined either to the day or night: again, if upon the
evidence it appears not to be burglary, because done in the day-time,
nor yet felony so qualified as is excluded from clergy, because either
HISTORIA PLACITORUM CORONA. 561
there was no act of breaking, or if there were, yet the dweller, his
wife or servants were not in the house, he may be convict of common
larciny, and so have benefit of clergy.
And so much for burglary joined with larciny.
Simple burglary is where the breaking and entering is ed inten-
tione ad bona 4' catalla furandum, or ad inlerjiciendnni, 4'C. and
this clause, as it is usually added in cases of simple burglary, so it is
necessary, and hereupon these things are observable.
1. That altho the breaking and entring be charged to be done
burglariter, yet if the intention of that entry be either laid in the
indictment, or appears upon the evidence to be to the intent only to
commit a trespass and not a felony, as eel intenlione ad ipsuni A. ad
tunc Sf- ibidem verberandum., it is no burglary, but it must be laid
and proved to be ed intentione to steal or to kill, or to commit some
other felony, for tho the killing or murder may be the consequence
of beating, yet, if the primary intention were not to kill, the intention
of beating will not make burglary. Co. P. C. p. 65. 13 H. 4. 7. 6.[13]
2. That if a man in the night break and enters a house to the in-
tent to commit a felony, tho he attains not that intent, but
takes or steals nothing, this is burglary, and excluded from [ 562]
clergy. 22 Assiz. 39 <§- 95. Dy. 99. Crompt. 31. a. Coron.
264. Slamf. P. C. p. 30, a. Co. P. C. p. 63. and herein it differs from
robbery.
3. It seems, that the intention to commit a felony to make a burg-
lary must be an intention of such a fact, as was felony by the com-
mon law (and not of a felony newly made by act of parliament,) as
larciny, or homicide.
It hath been therefore doubted, whether the breaking of a house in
the night with intent to commit a rape be burglary or not, Crompt.
fol. 32. thinks it is not, because, made felony by the statute of Westin.
2. cap. 34.;(;j) but Dalt. cap. 99. p. 255.{q) thinks it would be burg-
lary; because, rape was felony by the common law, until the statute
of fVestm. 1. cap. 13.(r) which turned it into a trespass punishable
by two years imprisonment, and so the statute of Westm. 2. was but
a restitution of the common law, and a setting aside of the statute of
Westm. 1. and this seems to be the more warrantable opinion that it
is burglary; but of this hereafter.
Now as to clergy in case of burglary. [14]
If it be such a burglary, as is also joined with actual theft or rob-
bery, and that robbery or theft be so laid in the indictment, and
proved upon evidence, as answers the statute of 23 H. 8. cup. 1. or
1 E. 6. cap. 12. or 5 (§' 6 E. 6. cap. 9. whereof enough hath been said
before, then the principal in such burglary is in those cases, which
(/>) 2 Co. Instit. 433. (5) New Edit. p. 489. (r) 2 Co. Inst. 180.
[13] Rex V. Knight, 2 East's P. C. 510; Id. 513; Rex v. Smith, R. Sf R. 417; Res
V. Brice, Id. 450 ; The State v. Eaton, 3 Harringt. R. 554.
[14] See ante note at p. 519.
562 HISTORIA PLACITORUM CORONA.
are within those statutes, ousted of his clergy, and the accessaries
^before are ousted of their clergy by the statute of 4 Sr 5. P. 8f- M. cap.
4. but the accessaries after have their clergy, as hath been said; but
in case of simple burglary, or burglary with theft, laid to be only
felonice Sj' burglariter, the principal is ousted of clergy if outlawed
or convict by verdict or confession, but is not ousted of crergy in case
of standing mute, not directly answering, or challenging above twenty,
by the statute of 18 Eliz. cap. 7.{s)
But by the statute of 1 E. 6. cap. 12. "If the breaking of the
house be in the day, or night time with intent to rob or
[[ 563 ] steal, any person being in the house and put in fear, tho
nothing be stolen, yet he shall be ousted of his clergy, if con-
vict by verdict or confession, or stand mute, or challenge peremp-
torily above twenty ;"(/) for this statute extends to this special kind
of burglary, 11 Co. Rep. 36. h. Poulter^s case, tho nothing be stolen,
and so differs from the statutes of 23 and 25 H. 8. which require a
stealing, as well as a breaking the house.
But tho in case of robbery in any dwelling-house, and therewith
putting in fear, according to the statute of 23 H. 8. cap. 1. or with-
out putting in fear according to the statute of 5 (§' 6 E. 6, cap. 9-
the malicious commanding, hiring or counselling of such offense is
put out of clergy, if so specially laid in the indictment, Dy. 183. b.
by the statute of 4 <§' 5 P. Sf' M. cap. 4. yet such accessaries before,
are not oust of clergy in case of breaking a house to commit a rob-
bery putting in fear, tho the principal be ousted of clergy by 1 Eliz.
cap. 12.
But accessaries before or after are not ousted of clergy by this
statute, or the statute of 4 (§• 5 P. 4* M. cap. 4.
And this statute doth oust of clergy not only those that actually
break, or actually enter the house, but also all those that are, in law,
principals in burglary, all those that are present, aiding and assist-
ing, or that stand to watch at the field-gate, while the others of the
confederacy or company break and enter the house.
And so it differs from the case of robbing of a person in his dwell-
ing-house, none being within, upon the statute of 39 Eliz. cap. 15.
for that statute excludes from clergy only those persons that actually
enter into the house, and not those who, tho of the confederacy, and
present aiding and abetting, yet never entered the house; quod vide
supra.
But as to accessaries before or after^ they are not ousted of their
clergy by the- statute of IS Eliz. cap. 7. nor doth the statute of
4 <5' 5 P. <§* M. extend to oust accessaries before of clergy
[564] in cases of burglary ;(w) but in cases of robbing of houses
within the qualifications and circumstances of the statute
(«) This defect is supplied by 3 ^ 4 W. S( M. cap. 9.
{t) This statute does not exclude those who challenge peremptorily above twenty;
this, according to our author's opinion, {vide postea, Lib. II. cap, 48.) was needless; but
they are since excluded by 3 i'^ 4 W. 8( M. cap. 9.
(«) But they are since ousted hy 3 Sf i W. ^ M. cap. 9.
HISTORIA PLACITORUM CORONA. 564
of 23 H. 8. cap. 1. or ^ ^- % E. 6. cap. 9. and not to burglary at
large. (j-)
And thus far concerning larciny, robbery and burglary,
which are felonies by the common law. [| 565 J
(x) Since our author wrote, there have been otlier statutes made to take away clergy
in cases of larciny committed in dwelling-houses, &c.
By 3^-4 W. <Sf M. cap. 9. " Clergy is ousted from those who shall feloniously take
away any goods in any dwelling-house, any person being therein and put in fear, or
shall rob any dwelling-house in the day-time, any person being therein; or shall comfort,
aid, counsel or command any person to commit any of the said offenses, or to break any
dwelling-house, shop or warehouse thereto belonging, and therewith used in the day-
time, and feloniously to take away any money or goods to the value of five shillings,
altho no person be within such dwelling-house, &c. or shall counsel, hire or command
any person to commit any burglary, if they be convicted, stand mute, or challenge
peremptorily above twenty."
The design of this clause was to deprive the accessaries before of the benefit of the
clergy ; but this statute not mentioning booths nor out-houses, leaves the accessaries in
such cases to their clergy.
The same statute enacts, " That persons indicted for a crime, of which being convict
they should not have their clergy by any former statute, shall not have it if they stand
mute, or will not answer directly, or challenge peremptorily above twenty, or be out-
lawed.
" Persons indicted of felony for stealing of goods, «Stc. if convicted, stand mute, will
not directly answer, or challenge peremptorily above twenty, shall lose their clergy,
if it appears upon evidence or examination, that the goods were taken in another county
in sucii a manner, whereof, if convicted by a jury of that county they should not have
their clergy."
This part of the statute helps the several former acts, which were defective either as
to the point of standing mute, or challenging peremptorily, or being outlawed.
By 10 4" 11 IF. 3. cap, 23. "All persons, who by night or by day shall in any shop,
ware house, coach-house or stable privately and feloniously steal any goods, wares or
merchandizes of the value of five shillings, or more, tho such shop, &c. be not broke
open, and tho the owner, or any other person be not therein, or that shall assist, hire or.
command any person to commit such offense, being thereof convict or attainted by ver-
diet or confession, or being indicted thereof shall stand mute, or challenge above twenty,
shall be excluded from the benefit af clergy."
The uses of this statute are these,
1. By the former statutes (except the case of a booth in a fair or market, by 5 & 6
E. 6.) it was necessary, in order to take away clergy, that the robbery should be in a
dwelling-house, whereas this statute extends to shops, ware-houses, &c. tho they should
not be adjoining to, or be any part of, a mansion-house.
2. The former statutes required there should be an actual breaking or putting in fear,
otherwise it would not be a robbery, which is the stealing intended by 39 Eliz. cap. 15.
as appears from the preamble of that statute; but by this statute, if the goods stolen be of
the value of five shillings, the offender is ousted of clergy as to a shop, ware-house,
coach-house, or stable, tho there be no breaking or putting in fear.
3. By 23 H. 8. and 1 E. 6. clergy was' not taken away, unless there were some per-
son in the house put in fear, nor by 5 &, 6 £. 6. unless some of the family were in the
house or booth ; nor by 39 Eliz. unless it were in the day-time, and no person in the
liouse; so that if the offence were committed when any person was in the house, if not
put in fear, nor one of the family, or when no body was in the house, if it were in the
night-time, in neither of those cases was clergy taken away by those statutes; but this
statute takes it away in both those cases as to shops, &c.
But still this statute omitted to mention dwelling-houses or out-houses, wherefore, to
supply this omission, another statute was made, viz.
12 Ann. cap. 7. by which it is enacted, "That if any person shall feloniously steal any
money, goods, or chatties, &c. of the value of forty shillings in any dwelling-house or
out-house thereto belonging, altho it be not broken, nor any person therein, or shall assist
any person to commit such offense, and shall be convicted by verdict or confession, or
stand mute, or will not answer directly, or shall challenge peremptorily above twenty, he
shall be debarred from the benefit of clergy." See ante, note at p. 519^
But both these statutes seem defective as to persons outlawed.
565 HISTORIA PLACITORUM CORONA.
There are two exceptions, that are added hereunto;
1. The first is really true, namely when it is tempus belli within
the kingdom, and one enemy either steals, robs, or plunders the house
or goods of another, and therefore the book of 22 */issiz. 95. adds to
the definition of burglary in time of peace, for in time of war,tho these
kinds of offenses committed by those of the same party, or those that
are not in hostility one to another are felonies, yet in time of war,
when done by an enemy, they put on another name, as acts of hos-
tility, misprisions, and the Hke.
Jiisque datum sceleri.
2. The second is only supposititious, namely when it is done in
case of necessity,(3/) as a poor person that in case of necessity for
hunger shall break and enter a house for victuals under the value of
twelve-pence, which is added as an exception to burglary, by Crompt.
fol. 33. a. and Dalt. cap. 99. p. 255, 256 (c) for tho I do agree a
judge ought to be tender in such cases, and use much discretion and
moderation, yet this must not pass for law, for then we shall in a little
time let loose all the rules of law and government, and burglaries,
robberies, yea murders themselves shall be excusable under pretense
of necessity, and we shall fall within the wild doctrine of the Jesuiti-
cal casuists, who of late in France and elsewhere, upon those general
misapplied maxims of Quicquid necessitas cngit, defendit, and in
casu extreme necessitatis om,nia sunt commu7iia, have.
[] 566 ~\ advised servants and apprentices, that it is lawful in point
of conscience to steal from their masters, or rob them in case
they make them not sufficient allowances of meat, drink, or clothes :
where laws are settled, there are other remedies appointed for the
I'elief of servants against oppressing masters, and of the poor, by
complaint to the magistrates without violating the established laws
of kingdoms or states.(*)
{y) See Grot, de jur. belli ac pads, Lib, II. cap. 2. §§ 6 & 7.
(z) New Edit. p. 489.
(*) What our author here observes is undoubtedly true, that the plea of necessity ought
not in such cases to be allowd, and the reason is, because the law supposes, that no man
can in a well governd coinroonwealth be driven to such a necessity ; this supposition i^
the more reasonable in England, where there are so many laws, and such large sums
yearly collected for the relief of the poor, as are more than sufficient for that purpose, if
rightly applied; yet such is the neglect in the execution of those laws, that it were to be
wished some expedient were found out to render that relief more speedy and effectual,
lest, while the necessity be real, the relief be only supposititious, which our author himself
tliought was oil-times tiie case, notwithstanding the provisions of the law ; {see his preface
to his discourse touching the provision for the poor,) which makes it reasonable it should
be allowed as an argument for mercy, tljo not as a plea in justification.
HISTORIA PLACITORUM CORONiE. 566
CHAPTER XLIX.
OP ARSON, OR WILFUL BURNI:NG OF HOUSES.
The felony of arson or wilful burning of houses is described by my
lord Coke, cap. 15. p. 66.' to be the malicious and voluntary burn-
ing the house of another by night or by day.
This was felony at common law,(«) and one of the highest nature,
and therefore by the statute of Westm. 1. cap. 15. such offenders
were not replevisable;(6) and by Brilon{c) the offenders herein were
burnt to death, but as to that the law is changed, they are to be
hanged. H. 7 E. 2. Coram liege Rot. 88. Norf.{d)
By the statute of 8 H. 6. cap. 6. dispersing of bills of
menace to burn houses, if money be not laid down in a cer- [] 567 ]
tain place, was made high treason, if the houses were burned
accordingly: vide Rot. Par. 15 H. 6. n. 23. but as to the treason it
is repeald^y the statute of 1 E. 6. cap. 12. and 1 Mar. cap. 1. but
the felony remains still in case the houses be burned. (e) [1]
In cases of wilful burning of houses the indictment runs, Quodfe-
lonice, voluntarih <§• malitiosh com,bussit dornum without saying
domum ynansionalem,, as in case of burglary. Co. P. C.p. 67.
And to examine this felony these things are inquirable, viz.
(a) 3 H. 7. 10. a. (b) 2 Co. Instil. 188. (c) cap. 9.
■' (d) By the laws of Elhelstan it was capital, incendiariis capitis paena esto; vide Leg.
Ethehtan, I. 6. and by the laws of Cnute it was one of those capital offenses for which
no ransom was allowd. Leg. Canuti, Z. 61.
(e) But since by the 9 Geo. I. cap. 22. it is made felony without benefit of clergy,
knowingly to send any letter without a name subscribed, or signed with a fictitious
name demanding money, venison or other valuable thing. This statute is amended by
Stat. 27, Geo. 2. c. 15. knowingly to send any letter without a name, or with a fictitious
name, demanding money, venison, or any other valuable thing, or threatening (without
any demand) to liill any of the king's subjects, or to fire their houses, out-houses, barns,
or ricks, is made felony without benefit of clergy. Vide 1 &l8 Geo. IV. c. 29, s. 8. Archb.
PL Sf Ev. in Crim. Law, 606.
[1] The English statutes in force at present are: 7 Wm. IV. Sf 1 Vict. c. 89. § 3. 5 &.
6 Vict. c. 38. § 1. 7 & 8 Vict. c. 62. § 1, 3, 4. The statute 7 &, 8 Geo. IV. c. 27, wholly
repeals the statute 23 Het,. VIII. c. 1. 43 Eliz. c. 13. 22 & 23 Car. II. c. 7. 9 Geo. I.
c. 22. (The Black Act) 9 Geo. III. c. 29 &, 52 Geo. III. c. 130; and the statute 9 Geo.
IV. c. 31, wholly repeals the statute 43 Geo. III. c. 58. (Lord Ellenborough's Act.) These
statutes do not alter the nature of the offence, or create any new offence, except that they
extend to the burning of other buildings than dwelling-houses, or out-houses parcel there-
of. See Burn's Just. Vol. I. Tit. Burning, Q9th Ed. 1845. See Re^. v. Jones, 1 Car. Sf
Kir, 303. 2 Mood. C. C. 308. Reg. v. England, 1 Car. Sf Kir, 533. Reg. v. Paice, I Id. 73.
For the United States Statutes, see the Act of March 3, 1825. sects. 1, 2. 11, 3 Story's
V. S. Laws, c. 276. p. 1999. Peters's Statntes at Large, vol. 4, p. 106.
For the Massachusetts statutes, see Rev. Stat. c. 126. sects. 1, 2, ,3, 4, 5, 6, 7, 8.
For the New York statutes, seeJiev. Stat. 657. sects. 9 & 10. 2 Id. 666. sects. 1, 2, 3,
4, 5, 6, 7, 8, 9.
For the statutes of New Jersey, see Statutes of New Jersey, (1847,) Tit. " Crimes and
Punishments,'" p. 265.
For the statutes of Pennsylvania, see Stroud's Purd. Dirr. Tit. '■'■ Arson," p. 80. 6 Ed.
p. 83. 1 Ed.
For the statutes of Virginia, see Rev. Code, ch, 171. sect. 5.
567 HISTORIA PLACITORUM CORONA.
1. What shall be said domiis. 2. What domus of another. 3. What
a malicious and wilful burning. 4. What kind of felony this is.
5. Whether and how clergy is allowable.
1. What shall be said domus.\2'\
[2] The building in respect of vvhich the offence is committed, must come within the
ordinary and estabiisiied meaning of the words used in the statutes. Tlie mere using
the building for a particular purpose, does not necessarily alter the nature of the build-
ing. Elsmore v. St. Briavells, 2 Man. S( Ry. 514; Q B. Sj Cr. 461. -S. C. An open build-
ing in a field, at a distance from and out of sigiit of the owner's house, though boarded
round and covered in. Rex v. Ellison, Mood. C. C. 336 ; a cart-hovel, consisting of a stub-
bled roof supported by uprights, in a field at a distance from other buildings, Rex v. Par-
rntt, 6 Car. Sf P. 402 was held not to be within the statute of 7 W. IV. ^1 Vict,
c. 89. But an open shed in a farmyard, covered with straw as a roof, was. Rex v.
Stallion, 1 Mood. C. C. 398; Rex. v. Hvvghton, 5 Car. Sf P. 555; Rex v. James, 1 Car.
Sf Kir. 303. A school-room, which was separated from a dwelling-house by a narrow pas-
sage, about a yard wide, the roof of vvhicli was partly overhung by that of the dwelling-
house, the two buildings, together with some others, and the court which enclosed them,
being rented by the same person, wa.s ruled to be well described as an out-house. Rex
V. H inter, Russ. Sf Ry. 295.
As to how far the burning of part of a dwelling-house, &c. (under 9 Geo. I. c. 22.) may
be an offence, see North's case, 2 EasVs P. C. 1021.
A common gaol was holden to be a house within the same statu||^ Donnevan's
cases, 2 Bl. Rep. 682 ; 2 EasVs P. C. 1020. S. C. But where a prisoner set fire to his
cell, for the purpose of effecting his escape, and such intent was shown, it was held in
New York not to be arson. The People v. Cottrell, 18 Johns. R. 115; so also in Vir-
ginia, Com. V. Posey, 4 CalVs R. 109.
A cotton-mill was held to be within the meaning of the 9 Geo. III. c. 29. s. 2 ; Anon.
2 Russ. 493. Burning a school-house is arson within the statutes of Connecticut and
Maryland. State v. O'Brien, 2 Root i2. 516 ; Jones v. Huvgerford, i G. Sf J. 402. But
is no crime at common law. Wallace v. Young, 5 Monr. 156.
Cases in burglary are referred to in the books to settle what is a dwelling-house, with
respect to arson. 7 Dane's Abr. 134; 2 EasVs P. C. 1020; Rex v. McDonald, 2 Lew.
C. Cas. 46; 2 Russ. on Crimes, 489. note t
1. A dwelling-house, at common law, includes all buildings, and apartments under the
Same roof, occupied with it for any purpose whatsoever. Thus, a wash-room {Burrows's
case, Moody's Cas. 274,) under the same roof with the main dwelling, having no internal
communication with it, was held to be part of it. And where the principal dwelling
and a stable, cow-house, cotlage, and barn stood in a line adjoining each other under the
same roof, in the order of which they are named, the barn was part of the dwelling-
house. Brown's case, 2 East, P. C. 501.
2. A dwelling-house includes all buildings and apartments under the same roof, how-
ever and by whomsoever occupied, which have a closed and covered communication with
it. Thus a son living elsewhere had a shop under the same roof with his father's house,
having a communication with it through the cellar, and the shop was held to be part of
the father's house. (Sef ton's case, R. S( R. 102.) A tenant had a sleeping-room on the
first floor and a work-shop in the garret, {Currell's case, 1 Leach, 237,) and two tenants
iiad each a dwelling-house and shop in the same building, having a communication be-
tween the apartments; the shop and workshop were held to be part of the dwelling-house.
{Rex V. Baily, 1 Mood. 23.) The same point was also settled in Stock's case, R. Sf R,
185; and in Com. v. Chevalier, 7 Dane Abr. 134.
3. A dwelling-house comprehends all buildings within its curtilage occupied with it
for any purpose, although not under the same roof, nor adjoining to it, nor having any
closed or covered communication with it — as a school-room, {Rex v. Winters, R. Sf R,
295;) a warehouse, {Walter's case, Mon. 13; Lithgo's case, R. <^ R. 357;) chambers over
a press, shop passage and lumber-room, {Rex v. Hancock, R, ^ R, 170;) a workshop,
{Rex V. Chalking, R. S^- R. 334;) a goose house, {Rex v. ilayburn, R. S( R. 360;) a barn,
stable, cov.'-hous^e, sliecp-house, dairy-house, and milk-house. 3 Inst. 67.
4. It comprehends adjoining buildings, used by its occupants for domestic purposes,
although not within the curtilage. "All out-buildings, as barns, stables, dairy-houses,
adjoining the house, are looked upon as part of it." (I Bac. Ab. Burg. E.) "Out-houses
adjoining to a dwelling-house, and occupied as a parcel thereof, though there be no com-
HISTORIA PLACITORUM CORONA. 567
It extendeth not only to the very dwelling-house, but to all out-
houses, that are parcel thereof, tho not contiguous to it, or under the
same roof; as in case of burglary, the barn, stable, cow-house, sheep-
house, dairy-house, mill-house. Co. P. C. p. 67. 11 //. 7. 1. b.{f)
(/) The words of the book are, because the ham was adjoining to the house, it was
holden to be felony; to make which serve our author's purpose we are not to understand
(hereby its being contiguous, but being so near the house, as to be parcel thereof.
. men enclosure or curtilage, may still be considered as parts of the mansion." (2 East,
P. C. 493.) In Rex v. Brown, (2 East, P. C. 5U1,) the principal dwelling-house, stable,
cow-house, cottage, and barn adjoining each other, were held to be one dwelling, and
although the level of the roof was uniform throughout, yet it is plain that they were
distinct buildings. But where an occupant of a dwelling-house occupies an adjoining
building for other than domestic purposes, it is not a part of the dwelling-house. This
was so held in Egginton''s case, (2 Leach, 913;) the principal building was a manufac-
tory, occupied by a firm, and the dwelling-house of one of the partners was in one of the
wings. As there was no communication between them, the manufactory was held to be
no part of the dwelling-house. See ante chap. 48. p. 556, note [II].
The question whose house a dwelling-house is in respect to arson, has been much dis-
cussed. In Holme's case, (2 East, P. C. 1027, & C. Cro. Car. 376 ; & C. William Jones,
351,) it was held, that the malicious burning of his own house by a lessee for years,
whereby the buildings of others were in danger of being burnt, was not a felony; that
is, was not arson, but was a high misdemeanor, of which the offender was convicted,
and for which he was punished under an indictment for a felony. It has been doubted
whether he ought to have been convicted under such an indictment, but no question has
been made of his being indictable for a misdemeanor. In Harris's case, (2 East, 1023,)
Mr. Justice Foster expressed the opinion, that the burning of a house by the rever-
sioner, which was occupied by a tenant under a lease, is not the burning of the
dwelling-house of another. In tiie same case it was held, that where the widow was
entitled to dower to whom it had not been set off, and a house which had belonged to
her husband subject to a mortgage, being occupied by a lessee, was burnt by her, it was
arson. In Spalding's case, (2 East, P. C. 1025, decided 1780,) after the preceding, it
was held not to be arson where the mortgagor, being in possession, set fire to his house,
for the purpose of defrauding insurers, as it was not the dwelling-house of another. See
Breeme's case, (2 East, P. C. 1026, S, C 1 Leach, 220,) the burning of his own house
by a lessee for years, was held not to be arson, because it was not the dwelling-house of
another. In this case arson is said to be an offence against the possession. In Ped.
ley's case, (2 East, 1026; S. C. Cald. 218; 1 Leach, 242, A. D. 1782,) it was held, that
a house occupied under a lease for three months, was tliat of the lessee. In this case it
is said also, that "arson is an offence against the possession of another." In Gowan's
case, (2 East, P. C, 1027, A. D. 1786,) where a pauper burnt the house in which he
was put by the parish-officers, for which he paid no rent and in which he had no right,
it was held to be arson; that is, it was held to be the house of another: in other
words, it was held that the parish were the occupants. In Rickman's case, (2 East,
1034, A. D. 1789,) in which the indictment did not allege whose house was burnt by
the defendant, it was held to be a material omission. It .was a house occupied by
the overseers of the poor for the accommodation of paupers, by one of whom it was
burnt, but it was not known in whom the legal estate was. It was held that it might
have been alleged to be the house of the overseers of the poor, or of persons un-
known. The doctrine as laid down by Mr. East, (P. C. vol. 2, p. 1034,) is, that the
house must be alleged in the indictment to be that of the person " who may be said to
occupy suo jure." This is precisely the doctrine as to burglary, in respect to which a
dwelling-house is that of the occupant. In a case subsequent to those above cited, viz.
{Glavjield's case, 2 East, P. C. 1034, A. D. 1791,) a dwelling-house belonged to the oc-
cupant of the house, and the out-buildings and farm also belonged to her, and she also
occupied a part of the out-buildings with her son, who separately occupied other out-
buildings with tlie farm, of which he took upon himself the sole management at his
own risk of loss or profit. One of the out-buildings in use of both, and another in use of
tlie son only, were burnt. It was held, that the indictment must allege one building to
567 HISTORIA PLACITORUM CORONiE.
But if the barn or out-hoiise be not parcel of a dwelling-honse, it
is not felony, unless the barn have hay or corn in it,(,^) and then,
tho it be no parcel of a dwelling-house, it is felony, 4 Co. Rep. 20. a.
Barhani's case; but if the barn have only hay in it, and not corn,
the offender shall have his clergy, but if it hath corn in it, he shall
be excluded of clergy, tho not parcel of a dwelling-house. Co. P. C.
p. 69.
The burning of a frame of a house was no felony by the
j] 568 ]] common law, but was made felony by the statute of 37 H. 8.
cap. 6. but that stands repeald, by 1 E. 6. cap. 12. and 1 Mar.
cap. 1. '
The burning of a stack of corn was no felony by the common law,
but the attempting of it was made felony by the statute of 3 & 4 E. 6.
cap. 5., (A) but that is repeald by 1 Mar. cap. l.{i)
But by the statute of 43 Eliz. cap. 13. the wilful and malicious
burning of any barn, or stack of corn, or grain within the counties of
Nor/ htimber land, Cumberland, Westmorland, or Eurham, is made
felony without benefit of clergy.(it)
11. What shall be said the house of a7iother.[3']
ig) But by 22 &, 23 Car. 2. cap.l, " It is felony maliciously to burn in the night-time
any rick or stack of corn, hay or grain, barns or other out-houses, or buildings, or kilns
whatsoever." So that now, tho the barn be empty, it is felony ; and by 9 Geo. 1. cap. 22.
clergy is taken away from the offender.
(A) This statute does not make the attempt felony generally, but only where divers
persons to the number of twelve are assembled for that purpose, and continue together
for the space of an hour after proclamation to depart, or where any above the number of
two, and under twelve, shall after proclamation, as aforesaid, in a forcible manner at-
tempt the same.
(i) But it is made felony by 22 & 23 Car. 2. cap. 7. and by 9 Geo. I. cap. 22. it is
felony without benefit of clergy to set fire to any house, barn, or out-house, or to any
hovel, cock, mow, or stack of corn, straw, hay or wood.
{k) By 1 Geo. I. cap. 48. it is felony maliciou?ly to set on fire any wood, underwood,
or coppice. By this statute clergy is not taken away;T>ut by 9 Geo. I. cap. 22. it is
felony without benefit of clergy to cut down or destroy any trees planted in any avenue,
orchard, garden, or plantation. See Archb. Crim. Law, Tit, " Arson,"^. 312, 10 Lond. Ed.
be the building of both, and the other to be that of the son. Here it was held, that the
building was that of the occupant.
In Margaret WalUs^s case, {Moody, C. C. 334, cited 2 Deac. 1496,) it was ruled, that
in an indictment for arson, a dwelling-house may be described as in possession of the
actual occupier, though his possession be wrongful. In Hohnes^s case, {Cro. Car. 376,)
it was held, that possession is a sufficient title. So in The People v. Van Blarcum,
2 Johns. jR. 105. '
In X.hG English \^\v this question, as to whose a dwelling-house is in respect to arson,
which, as Mr. East remarks, (2 East, P. C. 1034,) had been one of great nicety ip
English jurisprudence, is excluded by the statute of 7 & 8 Geo. IV. c. 30, s. 1, by which
it is enacted, that " if any person shall unlawfully and maliciously set fire to any house,
whether the same shall then be in possession of the offender, or in possession of any
other person, with the intent to injure or defraud any person, shall suffer death." This
provision makes the crime the same, wiicther it be committed by day or night, and
whether it be the dwelling-house of the offender or of another. The burning of other
buildings is put upon the same footing in the same section. Mass. Corn. Rep. Tit,
^^Arson and Malicious Burning.''^
[3] At common law, the offence could not be committed by a party in burning his
own house; and a person seized in fee, or but possessed for years of a house standing by
HISTORIA PLACITORUM CORONA. 568
A tenant for years of a house sets fire to his own house, thereby
intending maliciously to fire the house of B. if he burn his own house,
and also thereby burn the house of B. this is felony; but if he burn
not the house oi B. according to his design, but only burn his own.
house, this is not felony, but a great misdemeanor, for which he was
set in the pillory, fined, and perpetually bound to the good beha-
viour, and yet it was of a house in the city of London, and laid that
he did it eci intentione to burn th? houses of others. M. 10 Car. 1.
B. R. Croke 377. Holme's case, adjudged.
III. It must be a burning of a house of another, [4] therefore if./?,
sets fire to the house of B. maliciously to burn it, but either by some
itself, at a distance from all otiiers, could not commit felony in burning the same. So a
man so seized or possessed of a house in a town, who burned his own with intent to
burn his neighbour's, but in the event burned his own only, was not guilty of felony : it
was, however, certainly an offence highly punishable in regard to the malice thereof^
and the great danger to the public which attended it, and the offender was liable to be
severely fined and imprisoned during the Queen's pleasure, and set on the pillory, and
bound to his good behaviour. 1 Hawk. c. 29, s. 3; Breeme's case, 1 Leach, 220, Ath ed.;
Holme's case, Cro. Car, 376. cited in the text supra.
The frequent commission of the latter offence, and the very serious mischief that re-
sulted from its being merely a misdemeanor, at last attracted the attention of the legis-
lature; and the party who would occasion by burning his own possessions an injury to
another, the extent of which in many cases cannot be calculated, is now guilty of a felo-
ny : formerly, by 43 Geo. III. c. 58, usually called Lord Ellenborough's Act, and now
by 7 Will. IV. & 1 Vict. c. 89, s. 3.
The burning must be done unlawfully and maliciously to constitute the offence ; for
if it be done by mischance or negligence, it is no felony. (3 Inst. 67.) As if an unquali-
fied person, in sporting, happen to set fire to the thatch of a lioiise; or even if a man
were shooting at tlie poultry of another, by which means the house is fired, that is, pro-
vided he did not mean to steal the poultry, but merely to commit a trespass, for other-
wise the first intent being felonious, the party must abide all the consequences. 2 EasVs
P. C. 1019.
[4] If a man, by wilfully setting fire to his own house, burn also the house of one of
his neighbours, it will be felony. Rex v. Robert, 2 EasVs P. C. 1031. Rex v. Isaac, Id.
The law in such case implies malice, particularly if the party's house were so situate
that the probable consequence of its taking fire was tliat the fire would communicate to
the houses in its neighbourhood. Per Parke, J, in Sweetapple v. Jesse, 5 B. Sf Ad. 31.
2 Nev. Sf Man. 41. S. C. Bait's case, 3 City Hall Rec. 85.; sed vide Bliss v. Tobey,
2 R. SfR. 325. Curtis v. Godley Hundred, 3 B. Sf Cr. 248.
Neither a bare intention to burn a house, nor even an actual attempt to do it by put-
ting fire to part of a house, will constitute the offence, if no part of it be burned; but if
any part of the house, &c. be burned, the offence will be complete, notwithstanding the
fire be afterwards put out, or go out of itself. 2 East's P. C. 1020. The State v. Sandy,
3 Iredell, R. 570.
Where it was proved that the floor near the hearth was scorched, and it was in fact
charred in a trifling way, that it had been at a red heat, though not in a blaze, it was
held that the offence was complete. Reg. v. Parker, 9 Car. Sf P. 45.
But in another case, where it appeared that a small fagot was set on fire on the
boarded floor of a room, and that the fagot was nearly consumed, that the boards of the
floor were scorched black, but not burnt, and that no part of the floor was consumed, it
was held that the offence was not complete. Rex v. Russ., 1 C. Sf Marsh, SiL Rex v.
Taylor, 1 Leach, C. C. 49. Rex v. Judd, 2 T. R. 255.
The cases lay down the doctrine generally that it is sufficient if the house be on fire.
3 Inst. 66. 4 Bl. Com. 222, Chitiy's note. 2 EasVs P. C. 21. s. 4. Rex v. Taylor, cited
supra. The People v. Cotteral, 18 Johns, R. 115. But in all the cases where this gene-
VOL. I. — 50
5^8 HISTORIA PLACITORUM CORON.E.
accident or timely prevention the fire takes not, this is no felony, tho
it were a malicious attempt, for the words are incendit and combus-
sit, but if he had burned part of the house, and the fire is quenched,
ral doctrine was laid down, there was an evident intent to burn down the house. Sed
quare, whether tliis be not too broadly stated in point of principle.
The attempt to commit arson is a misdemeanor at common law, and as such may be
punished severely. Rex v. Jngleton, 1 Wils. R. 139. Burns^ Just. vol. 1. tit. ^^ Aiteinpts."
The burning must be with intent to injure some person who is not identified with the
defendant. Rex V.March, R. Sf M. 182. Rex v. Farrington, R. i^- R. 207. Rex v. Gibson,
Id. 138. Jervis's Arch. Cr. Law, 9 ed. 320.
As to the forin of the Indictment. — In describing the building, it is sufficient to use the
langjuage used by the act calling it a house, &.c. according to the fact. 2- EasVs P. C'
lOS'S. Rex v. North, Id. Rex v. Donnevan, 2 Wm. Bl. 682. 2 EasVs P. C. 1020.
1 Uach, C. C. 69. S. C. Rex v. Winter, R. Sf R. 298.
The name of the owner of the house must be stated in the same manner as in burglary.
Rex v. Standjield, 2 East's P. C. 1034. The Com. v. Wade, 17 Pick. R. 395. The State
V. Roe, 12 Venn. R. 93. It is necessary, therefore, to determine the party to whom the
premises belong. When any doubt is entertained on the subject, the difficulty may be
obviated by the insertion of several counts to correspond with the evidence. 3 Chit.
Cr. L. 1126.
If the premises be described as in the possession of A. B. proof that they are in the
possession of the tenants of A. B. will support the indictment. Rex v. Ball, R. Sf M.
C. C. 30. The People v. VarMarcum, 2 Johns. R. 105,
So if the possession of a house be obtained wrongfully, it may be described as the
house of the wrongful occupier. Rex v. Wallis, Mood. C. C. 334. The People v. Gates,
15 Wend. R. 159.
The parish in which the building is situated must be stated according to the fact; a
variance will be fatal. Rex v. Woodward, Mood. C. C. 323.
A variance between the day stated in the indictment, as that on which the offi^nce
was committed, and the day proved will be immaterial. Where the indictment alleges
the offence to have been committed in the night-time, and it was proved to have been
committed in the day-time, the judges held the variance to be immaterial.. Rex v. Min.
ton, 2 East, P. C 1021.
It is necessary to aver that the defendant " feloniously, unlawfully, and maliciously,"
set fire, &c. 2 EasVs P. C..1021. Rex v. Turner, R. Sf M. C. C. 239. Chapman v.
Co7n. 5 Whart. R. 427.
It was not necessary to aver in an indictment on the statute 9 Geo. I. c. 22. for setting
fire to a hay-stack, that the stack " was thereby burnt." Rea: v. Salmon, R. Sf R. C. C.
26. 2 Rvss. Cr. c^- M. 294. S. C.
In an indictment on the same statute for the same offence, it is no answer to the charge,
that the prisoner had no malice in spite to the owner of the stack; nor that the stack
stood upon his ground, if it was not his property. Id.
An indictment for setting fire to a barge, the property of another, ought to contain
an averment that it was done with an intent to injure the owner. Rex v. Smith,
4Car.Sf P. 569. • - .
An indictment on the statute oflSfS Geo.lV.c. 30. §§2. 17. for setting fire to a barn
and a stack of straw, charged the offences to have been committed " feloniously, volun-
tarily, ar\i\ maliciously," instead of feloniously, wnZaw/wZZf/, and maliciously, held bad.
The prisoners had set fire to a stack of stubble, (which in Camhridgeshire is called
• haulm;) they were indicted on a first indictment for setting fire to a "stack of straw:"
i/e/</, that this was not straw. And on their being again indicted. for setting fire to
" a stack of straw called hauhn," the judge intimated that to convict them upon such a
count would not be safe: and the verdict in consequence was taken upon other counts
charging the setting fire to a barn and a wheat stack. Rex v. Reader, 4 Car. Sf P. 245.
Ry. 4- M. C. C. 239. S. C.
An indictment on the same stat. § 17. charged a party with setting fire to a "stack of
barley of the value of Jfl 00 of R. P. W.:" Held good, although the words of the statute
creating the offence use " any stack of corn or grain :" Held also, that the words
" R. P. W." sufficiently stated the property. Rex v. Swatkins, 4 Car. Sf P. 548. .
HISTORIA PLACITORUM CORONA. 569
or goes out before the whole house be burned, it is felony. Co. P. C.
p. 66. Dalt. cap. 105.(/)[5]
It must be a wilful and maliciotis burning, otherwise it is not
felony, but only a trespass.
And therefore \( ,j1. shoot unlawfully in a hand-gun, suppose it be
at the cattle or poultry of ^. and the fire thereof sets another's house
on fire, this is not felony, for tho the act he was doing were unlaw-
ful, yet he had no intention to burn the house thereby, against the
opinion oi Dalt. cap. 105. p. 270. (m)
But if ^. have a malicious intent to burn the house of B. and in
setting fire to it burns the house of B. and C. or the house of B. es-
capes by some accident, and the fire takes in the house of C. and
burneth it, tho ^. did not intend to burn the house of C. yet in law
it shall be said the malicious and wilful burning of the house of C.
and he may be indicted for the malicious and wilful burning of the
house of C. Co. P. C. p. 67.(n)
An infant of about fourteen years of age or under may be guilty
of malicious burning of houses, if by circumstances it can appear he
knew it to be evil. [6]
Before me at Norfolk, a boy about the age of fourteen years was
arraigned upon two several indictments for malicious and wilful
burning of two several houses, t^e first was his own father's, and it
appeared, that when he had secretly carried fire into the barn and
fired it, he falsly charged another with the fact, and upon the boy's
accusation he was imprisoned, till it appeared clearly he was not the
offender: this boy was afterwards together with his father and his
other children entertained at a neighbour's house in charity, and
the boy watching opportunity, when none were in the house but a
child in the cradle, carried fire out of the kitchen into a room of fur-
zes, and set fire in it and went out, and thus burnt a second house,
and the child in the cradle; for both these he was questioned, and at
length confessed freely the whole circumstances of both facts;
he was indicted, and upon his arraignment pleaded, and upon [ 570 ]]
his trial craftily insisted, that he was under fourteen years
of age; but I directed the jury, that it appeared by the circumstan-
ces, that his malice supphed his age, for it appeared, that he under-
stood the evil of the first offense when he did it so secretly, and yet
charged another wrongfully j but if there had been any doubt of the
first burning, yet he could not but be conusant that the second burn-
ing was a great crime, when he saw another formerly charged by
him with the first burning committed as for felony; but yet for my
farther satisfaction, and in respect the boy seemed very little, I took
farther examination touching his age, and his father, being by, freely
{I) New Edit. p. 506. (?n) Pnd.
(n) See the case of Coke and Woodburne, State Tr. Vol. VI. p. 222.
[5] See ante note No. [2]. [6] See ante p. 26, note [2].
570 HISTORIA PLACITORUM CORONA.
confessed and was content to swear, that he was above fourteen and
near fifteen years of age, and he was convicted and executed.
IV. What felony this is.
And it seems unquestionable, that the burning of a dwelling-house,.
or any part thereof, or any out-house part thereof, was a felony at
common law, and so was also the burning of a barn with hay or corn
in it, tho not parcel of a dwelling-house, but standing at a distance.
Co. P. C. p. 67. 11 H.7.1.b.[l]
V. But as to the point of the not allowance of clergy therein, th6re
may be some matters to be examined : certain it is, that at this day
clergy is not allowable to a party convicted of wilful and malicious
burning of a dwelling-house, or of a barn with corn ; quod vide 11
Co. Rep. 34. Coulter'' s case adjudged per omnes Justic. Plow.
Com. 475. Co. P. C. p. 67. and the constant practice hath been to
deny clergy to those convict of this crime; quod vide in the reso-
lution of Poulter^s case.
And the statute of 4 <5- 5 P. 4' M. cap. 4. takes away clergy from
all accessaries before to the offenses of wilful burning any dwelling-
house, or of any barn then having corn or grain in the same;- and
surely they took the law to be, that the principal was by law ousted
of his clergy, or otherwise they would not have ousted the accessary
of his clergy. •
But then the question remains, what it was that ousted the prin-
cipal of his clergy.
By the statute of 23 H. 8. cap. 1. clergy was ousted from
[571] all persons found guilty of wilful burning of any dwelling-
houses or barn, wherein auy grain or corn should happen to
be, and from all persons found guilty of abetting, aiding or coun-
selling thereof, viz. accessaries before; except persons in order of
subdeacon, or above.
The statute of 1 ^. 6. cap. 12. as to divers offenses therein par-
ticularly mentiond, which are for the most part also included in the
statute of 23 H. 8. carried the exclusion of clergy farther, viz. as to
standing mute, or not directly answering, but mentions not at all
wilful burning of houses, or barns with grain; and enacted, that in
all other cases of felony persons indicted shall have their clergy, as
they should have had before 1 H. 8.
So that by the act of 1 E. 6. clergy was restored to burning of
houses and barns with corn, notwithstanding the statute of 23 H. 8.
or any other statute made since the first year of Henry VIII. and if
the ousting of the principal in arson from his clergy rested upon the
statute of 23 H. S. then the statute of 1 E. 6. had restored him to his
• clergy.
The solution therefore of this matter is upon two accounts.
[7] See Slate v. Stewart, 6 Conn. R. 47; Sampson v. Com. 5 W. Sf S. Rep. 385;
Com. V. Vanshriack, 16 Mass. R. 105; Com. v. Macomber, 3 Id. 254; Com. v. Squire,'
1 Metcf. R. 258; Com. v. Wade, 17 I'ick R.S'JS.
HISTORIA PLACITORUM CORONiE. 571
1. Some have thought that the wilful burning of houses was not
within clergy by the conrimon law, nor by the statute of 25 E. 3.
cap. 4. because it was an hostile act,(o) and therefore, as until the
statute of 4 H. 4. cap. 2. Insidiatores viarum <§• depopulatores
agrorum joined with another felony, and so found, were ousted of
their clergy, because savouring of acts of hostility, so incendiatores
doni one 771 were even by the common law ousted of clergy before the
statute of 23 H. 8. and so are not restored to clergy by the general
clause of the statute of 1 E. 6. and this I remember was delivered as
the reason of the exclusion of clergy from wilful burning by ]Mr. At-
torney Not/, S Car. 1. in the king's bench, and seemed to be assented
to by the court.
But I think this will hardly help the matter, 1. Because tho
possibly clergy might not be allowd at common law to
MMJful burning, yet the statute of 25 E. 3. cap. 4. p7'o [ 572 ]]
ckro extends clergy to all treasons and felonies touching
other persons than the king himself, and his royal majesty. 2.
Because then as well a burning of a barn with hay, as a barn
with corn, would be excluded from clergy, for the one is"as hostile
as the other.
2. Others have thought that the statute of 4 4- 5 P. 4' M. cap. 4.
taking away clergy from the accessaries before, doth take away by
necessary consequence the clergy from the principal, for it were not
reason to think the accessary before, should be in a worse condition,
than the principal offender, and therefore virtually and implicatively,
and by necessary consequence it takes away clergy from the princi-
pal in all those cases, where it takes it from the accessary before;
and besides, if the principal had his clergy, the accessary could
not be arraigned, and this I think is true, tho this case needs not this
help.
But I think, and so is the book of 1 1 Co. Rep. 34, 35. that the statute
of 25 H. S. cap. 3. which extends to take away clergy in all those cases
which were within 23 H. 8. cap. 1. and particularly recites that of
burning houses and barns with grain, and farther extends that exclu-
sion to standing mute, not directly answering, challenging above
twenty, I say that statute of 25 H. 8. was in great part repealed by
the statute of 1 E. 6. and is entirely revived by the statute of 5 <5' 6
E. 6. cap. 10. not only as to the point of ousting clergy upon exami-
nation,(/?) but also as to the exclusion of clergy in those cases men-
tioned in the act of 25 H. 8. wherein burning of houses and barns
with corn is expresly mentioned, so that consequently this statute of
(o) And so interpretatively a felony touching the person of the king himself, which by
that statute vvas ousted of clergy.
(/)) This relates to the second clause of the 25 H. 8. cap. 3. whereby it is provided that
if aoy persons be indicted in one county for stealing- goods in another, and stand mute,
or challenge peremptorily above twenty, or will not directly answer, they shall be put
from their clergy in like manner, as if they had been tried and found guilty in the same
county, where the offense was committed, if it appear to the justices by the evidence or
on examination, that it was such a felony, as if found guilty thereof in the county where
conimitted, they would have lost their clergy by the 23 H. 8. cap. 1.
572 HISTORIA PLACITORUM CORON.E.
5 Sr 6 E. 6. reviving the statute of 25 H. 8. repeals the generahty of
that clause in 1 E. 6. whereby clergy was let in, in all cases there
not enumerated.
[ 573 ]] And consequently the periods of this case of clergy in
wilful burning stand thus.
1. Before 23 H. 8. clergy was allowable therein by force of the
statute of 25 E. 3. pro clero.
2. After 23 H. 8. until 25 H. 8. clergy was allowable for the ac-
cessary in all cases, and for the principal in all cases, but finding hitn
guilty.
3. After 25 H. 8. until 1 E. 6. clergy was taken away from the
principal as well where he stands mute, not directly answers or chal-
lenges above twenty, as where he is found guilty.
But the accessaries as well before as after were to have clergy.
4. After 1 E. 6. till 5 S>^ 6 E. 6. when the statute of 25 H. 8. was
revived, both principal and accessaries had their clergy in all cases
of burning.
5. After 5 8,^ 6 E. 6. till 4 (§- 5 P. (S* M. cap. 4. the principal was
excluded in all cases, wherein he was excluded by the statute of 25
H. 8. as well where he stood mute, challenged above twenty, did
not directly answer, as where found guilty. (§-)
But the accessaries before, as well as after, had their clergy.
6. By the statute of 4 4' 5 F. S)' M. cap. 4. until this day, accessa-
ries before are excluded of clergy in all cases, but accessaries after
have their clergy.
But yet there still remain two doubts.
1. Whereas the statute of 4 <§• 5 P. c^- M. cap. 4. extends to oust
clergy from the accessary, as well if he be attainted as convicted, and
consequently if outlawed, he shall not have clergy, because it is an
attainder; the statute of 25 H. 8. extends only to finding guilty,
challenging above twenty, standing mute, or not directly answering,
and it seems in attainder of the principal by outlawry he shall have
his clergy; therefore quasre, whether an attainder by outlawry ousts
the principal of clergy upon the statute of 23 or 25 H. 8.
2. Whereas the statute of 4 <§• 5 P. <§• M. cap. 4. hath no
[ 574 3 exception of persons in the order of sub-deacon; but acces-
saries before are ousted of their clergy in all cases by that
statute, tho in orders.
Yet by the statute of 25 H. 8. which is relative to the statute of
23 H. 8. principals in the order of sub-deacon, or above, have their
clergy in the case of arson, for by the statute of 23 H. 8. clergy is
saved to men in orders, where found guilty; and by the statute of
25 H. 8. in cases of standing mute, <§'c. they are ousted of their clergy
as if found guilty, in which case men in orders had their clergy, and
so the revivmg of the statute of 25 H. 8. by that of 5 <5' 6 E. 6. lets
in men in orders to their clergy in case of arson, wliich seems to
make this absurdity, that the principal in arson shall have the beiie-
{q) By 3 &. 4 W. Sf M. clergy is taken away in case of outlawry also.
HISTORIA PLACITORUM CORON.^. 574
fit of dergy if in orders, but the accessaries before, tho in orders,
are excluded by the general penning of the act of 4 4' 5 P. <§• M.
And herein tfiere will arise a difference as to men in orders, in re-
lation to the benefit of clergy, between the case of being principal in
wilful burning of houses, and the case of being principal in robbery
in or near the highway, or robbing in a dwelling-house, putting the
dweller in fear, or murder of malice prepense ; for the act of 1 E. 6.
cap. 12. excludeth them from their clergy generally without exception
of men in orders, tlio they were excepted by the statutes of 23 and
25 U.S.
But this statute of 1 E. 6. making no mention of burning of houses,
the exclusion of them from clergy, if resting upon tiie statute of 25
H. 8. revived by 5 4- 6 E. 6. excepts them. [8]
[8] The State v. Seaborn, 4 Dtp. R. 305 ; Com. v. Posey, 4 CaWs Rep. 109. See ante
chap, 44, p. 517, note [1.]
CHAPTER L. [ 575 ]
CONCERNING FELONIES BY THE COMMON LAW,[1] RELATING TO THE
BRINGING OF FELONS, TO -JUSTICE, AND THE IMPEDIMENTS THERE-
OF, AS ESCAPE, BREACH OF PRISON, AND RESCUE; AND FIRST
TOUCHING- ARRESTS. [2]
I COME now, according to the method propounded, to consider those
felonies that relate to the public justice of the kingdom in bringing
malefactors to their due punishment, and the impediments thereof,
and they are principally three, viz. 1. By the party arresting or
[2] As to Arrests, see vol. 2, ch. 10, 11, 12, 13, and notes thereto.
[1] "Felonies in England, comprised originally every species of crime which occa-
sioned the forfeiture of lands and goods. At common law, in addition to the crimes
more strictly coming under the head of treason, the chief, if not the only felonies, were
murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.
By statutes, however, running from the earliest period, new felonies were, from time to
time, created; till finally not only almost every heinous offence against person or pro-
perty was included within the class, but it was held that whenever judgment of life or
member was affixed by statute, the offence to which it was attached, became felonious by
implication, though the word felony was not used in the statute." In this country, with
a few exceptions, the common law classification has obtained; the principal felonies
being received as they originally existed, and their number being increased as the exi-
gencies of society prompted. In New York, however, felony by the revised statutes is
construed to mean an offence for which the offender, on conviction, shall be liable by law
to be punished by death, or by imprisonment in a State prison. {Rew Stat. N. Y. Part
IV. Chap. II. Title 7. s. 30.) And in Virginia it comprehends all offences below trea-
son which occasioned a forfeiture of property at common law, all -so denominated by
statutes, and all to which statutes have annexed capital punishment or confinement in
the penitentiary, excepting thpse which, though subjected to. the latter punishment, are
575 HISTORIA PLACITORUM CORONA.
imprisoning, as voluntary escapes. 2. By the party arrested, and
imprisoned, as breach of prison. 3. By a stranger, as rescue of
felons.
And in this order I shall examine these offenses ; but as a neces-
or may be declared misdemeanors by the statutes Grating them." Barker v. Com. 2 Vir-
ginia Cases, 122; Whart. Am. Crim. L. 1, 2.
J'elony is supposed to come from tlie Saxon fel, which signifieth fierce or cruel ; of
which the verb fell signifieth to throw down or demolish, and the substantive of that name
is used to signify a mountain rough and uncultivated. But the same word, with a little
variation, runneth througli most of the European languages, and signifieth more gene-
rally, an offence at large; and the Saxon word faellan, signifieth to offend, diTid fellnisae,
an offence or failure ; and altliough felony, as it is now become a technical term, signi-
fieth in a more restrained sense an offence of a higii nature, yet it is not limited to capi.
tal offences only, but still retaineth somewhat of this larger acceptation; for petit larceny
is felony, although it is not capital Burn's Just. Tit. "Felony," 29iA Ed.
According to Sir Henry Spelman's observation, it signifieth such an offence for which,
during the feudal institution, a man should lose or forfeit his estate; which he derives
of two northern words, fee, which signifieth the fief, feud, beneficiary, estate; and Ion,
which signifies price or value.
Upon the whole, the only adequate definition of felony seems to be this, viz. " an
offence which occasions a total forfeiture of either lands or goods, or both, at the common
law, and to which capital or other punishment may be superadded according to the de-
gree of guilt. 4 Bl. Com. 94, 95.
The idea of felony is, however, so generally connected with that of capital punishment,
that it seems hard to separate them, and to this usage the interpretations of law now con-
form. For if a statute makes any new offence /e/ony, the law implies it shall be punished
With death, (viz. by hanging,) as well as by forfeiture. See 1 Hawk. c. 41. s. 4; 2 Id.
c. 48.
Where the statute declares that the offender shall, under the particular circumstances,
be deemed to have feloniously committed any act, it makes the offence a felony, and im >
poses all the common and ordinary consequences attending a felony. Rex v. Johnson,
3 M. Sf Sel. 556. And though a statute make the doing of an act felonious, yet, if a
subsequent act make it penal o.nly, the latter is considered as a virtual repeal of the for-
mer. 1 Hawk. c. 40. s. 5.
All felonies are several, and cannot be joint, so that a pardon of one felon cannot dis-
charge another; but the felony of one man may be dependent upon that of another, and
the pardon of the one, by a necessary consequence, enure to the benefit of the other, as
in cases of principal and accessary, &.c.
The Massachusetts Commissioners, in their Report, enumerate as felonies within the
provisions of their code, treason, murder, arson, rape, malicious burning, carnal abuse of
a female child under ten years of age, burglary, robbery, larceny, kidnapping, child-
stealing, and the offence of assault, or assault and battery in the first degree. And in a
note they add that the meaning oi" felony as by them defined, is limited to the use of the
word in their code, and is not to be confounded with the common law signification of
the same term, ''whatever tiiat meaning may be, for it is a matter of no little difficulty
to settle it." Rep. tit. " Explanation of Terms."
Wliere one is found guilty of acts which amount to a felony, though not charged to
be done feloniously, he cannot be sentenced as for a misdemeanor. Commonwealth v.
Ivingshury, 5 Mass. 106. Commonwealth v. Rohy, 12 Pick. 496. Commonwealth v.
Macomber, 3 Mass. 254.
If acts amounting only to a misdemeanor are charged to be done feloniously, the
accused cannot be convicted of the misdemeanor. Commonwealth y. Newell, 7 Mass.
245. But see Com. v. Sijuire, 1 Met. 258. The People v. Jackson, 'S HiWs IS. Y. Rep,
92. The People v. White, 22 \Yend. 175.
Statutes are to be construed so as not to multiplj' felonies, unless such construction is
supported by express words or necessary implication. Commonwealth v. Mucomher,
3 Mass. 254. 257, Commonwealth v. Barlou^, 4 Mass. R. 439. It would be such an im-
plication if the statute provided for tlie punishment of accessaries after the fact to the
offence in question as distinct oft'enders. Ih.
A conviction, judgment and execution upon one indictment for a felony not capital, is
HISTORIA PLACITORUM CORONA. 575
sary preliminary thereunto, I shall first consider of arrests and im-
prisonment for capital offenses, by whom it may be done, and where
lawful.
Arrests of malefactors are of two kinds, 1. Either by persons
thereunto by law deputed, or 2. By private persons.
And the former is again of two kinds. Either, 1. By process of
law, or 5. Virtute officii.
The former again is of two kinds, 1. Either by process in the
king's name, 2."0r by warrant in the name of a judge or justice
thereunto authorized, and that either in writing or ore ienus.
I shall pursue this order, and
I. Shall begin with the first of these, namely, arresting by virtue
of the king's writ.
V Regularly no process issues in the king's name and by his writ to
apprehend a felon or other malefactor, unless there be an
indictment, or matter of record in the court upon which the [ 576 ]
writ issues.
Aniiently the process upon an appeal or an indictment of felony
was only one Capias, and thereupon an Exigeyit. 22 ^Issiz. 81.
By the statute of 25 E. 3. cap. 14. there are to be a Capias and an
^lias with a command to the sheriif to seize the goods of the felon,
and then an Exigent.
But it should s'eem by the book of 8. H. 5, 6. that this, statute ex-
tended not to felony of death, but that there should be only one
Capias, and then an Exigent.
a bar in Tennessee to all other indictments for felonies not capital, committed previous to
such conviction, judgment and execution. Crenshaw v. The Slate, Mart. Sf Yerg. 122.
Under an indictment for horse-stealing, it was held that to constitute a felony there
must be a trespass in the original taking. The State v. Braden, 2 Overton, 68.
In New York, if a prisoner confined in the county prison, on a conviction of petit
larceny, break prison, it is a felony for which he may be sentenced to imprisonment
in the !^tate prison for a period not exceeding fourteen years. The People v. Duell,
3 Johns. 449.
It is felony for a man who elopes with another's wife, to take his goods, though at the
solicitation of the wife. The People v. Schuyler, 6 Cow. 572.
It is very much to be doubted whether a person ought ever to be convicted of a felony
on the uncorroborated testimony of a prosecutor, who claims the property in question to
which the defendant also claims title. Where the transaction was attended with none
of the usual concomitants of larceny, as concealment, for example, the court, upon con-
viction, ordered a new trial. The State v. Kane, 1 McCord, 482.
In tliis country, where conviction of a felony does not work a forfeiture, a civil action
is not merged in a felony. Robinson v. Culp, Const. Rep. 231.
It seems that one guilty of a felony should be proceeded against criminally before a civil
action can be brought, because he should not be convicted of a felony except on a direct
charge of a crime. lb.
Wild bees remaining in the tree where they have lived, are not the subject of felony,
though the tree is on the land of another who has confined them in it. Waliis v. Mease,
3 I'invey R. .546.
A slave in South Carolina can commit a felony. The State v. Wright, 4 McCord, 358.
A mere solicitation to commit a felony is an offence, whether it is committed or not.
The People v. Bush, 4 HiWs N. Y. Rep. 133.
It has been held in New York that petit larceny is not a felony. Carpenter v. Nixon^
5 Hill R. 260. Ward v. The People, 3 Id. 395.
576 HISTORIA PLACITORUM CORONA.
Bat by the statute of 6 H. 6. cap. 1. if A. de B. in comitahi S.
be indicted in the king's bench in Middlesex, there shall go out one
Capias into Middlesex, another into S. and each shall have six
weeks at least between the T^e^/eand return, and upon Non iiwentus
returned then an Exigent.
But if he be not named of another county, then it seems only one
Capias shall issue, where the party is indicted, and upon that an
Exigent: this statute was made during the king's pleasure; but by
the proviso in the statute of 8 //. 6. cap. 10. it seems to be made
perpetual.
By the statute of 8 //. 6, cap. 10. if./?, de B. in com. S. be indicted
or appealed in com. IV. before justices asssigned, there shall go out
first a Capias in Com. fV. and upon No7i inventus returned, a Capias,
with proclamations in com. S. having three months at least between
the Teste s.nd return, or otherwise no Exigent to issue; but the prd-
cess in the king's bench is excepted.
But this statute only extends, where the party is indicted in another
county, than where conversant.
By the statute of 5 E. 3. cap. 11. justices of oi/er and terminer
may issue process against felons in a foreign county, and these
processes ought, or at least may and are most fit to issue in the
king's name under the Teste of the chief judge, for which pur-
pose all clerks of assizes have a special seal, and issue their pro-
cess in the king's name in case of felony, where they go to the
outlawry, tho some other warrants are made in the name of the
judge. .
And in all cases the king's writs are directed to the
(]577] sheriff, and he executes the writ himself, or by his warrant
under seal to the bailiffs.
And upon these writs the sheriff or his bailiff may break open
doors to take the offenders, for they are for the king and preserva-
tion of the peace, and therefore include a no7i omit tas propter uli-
quam libertatem; quod vide 5 Co. Rep. 92. a.
And in this case the sheriff or his bailiff may require any per-
sons present to assist him in execution of the writ, and he that
refuseth to assist him, is indictable and punishable by fine and im-
prisonment.
II. The second kind of arrest is by warrant under tlie seal of the
justices thereunto authorized, as justices of oi/er and terminer, or of
gaol-delivery, or justices of peace.
And herein these things are considerable: 1. What are the essen-
tials of such a warrant, without which it is void in law. 2. Who
may grant a warrant to apprehend a felon. 3. To whom, and 4. In
what order or method it is to be granted, or 5. Executed, and in
what case.
1. As to the first of these.
It is necessary that such warrant express the name of the party to
be taken: for a wari-anl granted with a blank and sealed, and after
HISTORIA PLACITORUM CORON.^. 577
filled up with the name of the party to be taken is void in law.
Dalt. cap. 117.;;. 329.(«)
It must be under seal, tho some have thought it sufficient if it be
in writing subscribed by the justice, Dalt. cap. 117. /;. 358. vide 2.
Co. Inslit. supra statutum de fraiigentibus prisonain, p. 591. and
the faiUng in these things will make the warrant void, and subject
the officer to a false imprisonment; tho in some cases, the want of
(due formality may be blameable in him that makes the warrant,
yet it will not therefore subject the officer to a false imprisonment, if
the matter be within the jurisdiction of him that makes it; as for
instance,
A warrant by a justice to apprehend J. S. to answer such matters
as shall be objected against him, ex parte domini regis, without ex-
presshig the certainty of the crime, this is not regular, Lamhard' s
justice QS, 96. 2 Co. Instit. 591. 615. tho Mr. Dalt. cap.
117, p. 329. gives instances of such warrants granted by [578]
Po/^/^f/m chief justice.
And therefore, if before commitment a person so apprehended
should be removed into the king's bench by Habeas Corpus, upon
such a warrant, or should be committed upon such a general Mit-
timus, he should be discharged; or in case he should be rescued
upon such an apprehension by such a warrant, or be voluntarily let
go by him that apprehends him, (tho it may be the true cause of the
warrant were felony,) yet it not being expressed in the warrant, such
an escape or such a rescue would not be felony.
Yet it may excuse the officer in false imprisonment, if the true
cause were felony, or any misdemeanor within the cognizance of
him that makes the warrant, for it is but an erroneous, not a void
warrant, and it is not reasonable to suppose the officer should be
conusant of the formalities of law, or advise with counsel upon all
occasions, whether the warrant were in strictness of law regular,
especially in such a case where the error of this nature hath been
seconded with common practice; but of this more hereafter.
2. As to the persons, that may grant a warrant for apprehending
a felon.
The chief justice of the king's bench or any other judge of that
court may issue a warrant in his own name, for the apprehending
and bringing before him any person touching whom oath is made of
a felony committed, or of suspicion of felony upon him, into any
county of England and JVales, for they are intrusted with the con-
servation of the peace through all England, and are more than
justices of peace or oyer and terminer; and this hath been usual in
all ages. .
But to avoid the trouble to the country in bringing up offenders
they usually direct their warrants to apprehend the parties, and
bring them before some justice of peace near adjoining, either to be
examined or bound over to the sessions, and farther to be proceeded
against according to law.
(a) New Edit. p. 574.
578 HISTORIA PLACITORUM CORONiE.
And thus their warrants ought to run in cases of surety of the
peace or good behaviour against a person in another county, than
where they are, by reason of the statute of 21 Jac. cap. 8.
Justices of oyer and terminer may also issue their war-
r 579 ~\ rants in the counties within their commission for apprehend-
ing felons or other malefactors, or for surety of the peace
within their limits ; qiisere, whether they may not issue their warrants
for any indicted of felony within their precincts, tho tiiey are abroad «
in a foreign county, by the statute of 5 E. 3. before mentioned?
Justices of peace may also issue their warrants within the precincts
of their commission for apprehending persons charged of crimes
within the cognizance of the sessions of the peace, and bind them
over to appear at the sessions, and this, tho the offender be not yet
indicted.
And therefore the opinion of my lord CoJce, 4 Inst it. 111. is too
strait-laced in this case, and, if it should be received, would obstruct
the peace and good order of the kingdom; and the book of 14 H. 8.
16. upon which he grounded his opinion, was no solemn resolution,
but a sudden and extrajudicial opinion, and the defendant had liberty
to mend his plea as to the circumstance of time, to the end it might ,
^be judicially settled by demurrer, which was never done; and the
constant practice hath obtained contrary to that opinion; quod vide
Dalt. cap. 117.(6)
And whereas my lord Coke^ ubi supra, s^Jiih also, that a justice of
peace upon oath made by A. of a felony committed, and that Ji. sus-
pects B. and shews his cause, cannot issue a warrant to bring B.
before him for farther examination, and thereupon commit or bind
him over to the assizes or sessions, because it must be the proper sus-
picion of Ji. himself, and Ji. may arrest him upon the score of his.
own suspicion, but not by warrant of the justice; I think the law is
not so, and the constant practice in all places hath obtained against'
it, and it would be pernicious to the kingdom if it should be as he de-
livers it, for malefactors would escape unexamined and undiscovered;
for a man may have a probable and strong presumption of the guilt
of a person, whom yet he cannot positively swear to be guilty.
Therefore I think, that if Ji. makes oath before a justice of peace
of a felony committed in fact, and that he suspects B. and
[ 580 ] shews probable cause of suspicion the justice may grant his
warrant to apprehend B. and to bring him before him, of
some other justice of peace to be examined, and to be farther pro-
ceeded against, as to law shall appertain; and upon this warrant the
constable, or he to whom the warrant is directed, may arrest him,
and if occasion be may break doors to take him, if within a house,
and will not upon demand render himself, as well as if it were an
express and positive charge of felony sworn by JI. against'him, and
so hath common practice obtained notwithstanding thatopmion: vide
statute IVestm. 1 cap. 15.(c) 13 E. 4. 9. a.
(6) New Edit. p. 57G. (c) 2 Co. Inst. p. 185.
HISTORIA PLACITORUM CORONiE. 580
But a general warrant upon a complaint of a robbery to apprehend
all persons suspected, and to bring them before, ^-c. was ruled void,
and false imprisonment lies against him that takes a man upon such
a warrant, P. 24 Car. l.upon evidence in a case of justice Swallow^ s
warrant before justice Roll.
If A. hath committed treason, tho the justices of the peace have
no cognizance of it as treason, yet they have cognizance of it as a
felony, and as a breach of the peace, and therefore a justice of peace
upon information upon oath may issue his warrant to take him, and
may take his examination, and commit him to prison.
Jl. commits a felony in the county of B. and then goes into the
county of C. upon information given to a justice of peace of the
county of C he may issue his warrant to take him, may take his
examination, and commit him to gaol in the county of C. from
whence he may he removed by Habeas Corpus to the county of B.
for his trial.
If ^^. commit a felony in the county of B. and upon a warrant
issued against him by a justice of peace in the county of B. he is pur-
sued and flies into the county of C. and there is taken, he must not
by virtue of that warrant be carried to a justice of peace of the county
oi B. where he committed the felony, but to a justice of peace in the
county of C. where he was taken.
But if A. were taken by the warrant in the county of B. and break
away into the county of C. and be there taken upon fresh
suit by them that first took him, he may be either brought [ 581 ]
to a justice of the county of C. where he was last taken, or
before the justice of the county of ^. by whose warrant he was first
taken ; for in supposition of law he was always in custody: vide du-
bitahtr, 13. E. 4. 9. a.
If./?, be in commission of the peace in the county of i?. and hap-
pen to be in the county of C. and there complaint is made to him of
a felony in the county of B. where he is in commission, as he can-
not issue a warrant out to apprehend the party, so neither can he im-
prison in the county of C. because an act of jurisdiction, but he may
take an oath of a party robbed in pursuance of the statute of 27 Eliz.
or he may take an examination, or information, or recognizance in a
foreign county, but cannot compel them by imprisonment. P. 7 Car.
1. Croke, n. 3 Helyar\s case,((/) Dalt. cap. 6. and 117.(e)
But if./?, be a justice of peace in two adjacent counties, tho by
several commissions, as the recorder oi London is, nothing is more
usual for him, that whilst he lives in one county to send .his warrants
to apprehend malefactors in another, and to send them to Newgate,
which is the common gaol of both counties, London and Middlesex.
3. Touching the persons to whom a warrant may be directed.
The justice that issues the warrant, may direct it to a private per-
son if he please, and it is good ; but he is not compellable to exe-
cute it, unless he be a proper officer. 14 H. 8. 16. Dalt. cap. 117.
p- 332.(/)
(d) Cro. Car. 211. (e) New Edit. p. 25 ^ 575. (/) New Edit. p. 577.
581 HISTORIA PLACITORUM CORONiE.
The warrant is ordinarily directed to the sheriff or constables, and
they are indictable, and subject thereupon to a fine and imprisonment
if they neglect or refuse it.
If directed to the sheriff, he may make a warrant to his baihff fo
execute it.
If to a constable, tithing-man, <5'C. he must execute it himself, and
may not substitute another ; but he may call any persons to assist him,
and they are bound to assist him, and are indictable if they neglect
or refuse to assist : vide Dalt. ubi supra.
If directed to the constable oi D. he is not bound to'ex-
[ 582 ] ecute the warrant out of the precincts of his constablewick,
but if he doth it out of his constablewick, it is good; and so
it was ruled in Norfolk in an action of trespass.
4. Touching the order in granting it.
1. It is convenient, tho not always necessary, to take an informa-
tion upon oath of the person that desires the warrant, that a felony
was committed, that he doth suspect or know J. S. to be the felon ;
and if suspected, then to set down the causes of his suspicion.
2. If the charge of the felony be positive and express, theft it is fit
to bind the party by recognizance to prosecute, before the warrant
be issued.
But if it be only a charge of suspicion, and the business requires
farther examination, then it is neither necessary nor fit to bind over
the party to prosecute; for possibly upon the bringing in of the party
accused, and farther examination of the fact, there may be cause to
discharge him, and thus I think Mr. Balton to be intended, ca/j. 117.
J). 334.(^) the case before chief justice Flemming.
3. The warrant may issue to bring the party before the justice that
granted the warrant specially, and then the officer is bound to bring
him before the same justice; but if the warrant be to bring him be-
fore any justice, then it is in the election of the officer to bring him
before what justice of the county he thinks fit, and not in the election
of the prisoner. 5 Co. Eep. 59. b. Foster's case.
5. Touching the demeanor of the officer in executing the warrant.
If it be a warrant for felony, or a warrant for the surety of the
peace, the officer may break open the door, if he be sure the offender
is there, if after acquainting them of the business, and demanding the
prisoner, he refuses to open the door, tho the party be not indicted;
and this is the constant practice against the opinion of my lord Co/ce,
4 Inst. 177. guod vide Dalt. cap. 117. p. 333. (A)
And so it is if the warrant be only upon suspicion of
[ 583 ] felony, as hath been said before, for in both cases the pro-
cess is for the king, and therefore a Non omittas is implied,
and he that diligently considereth the statute of West. 1. cap. \5.{i)
and the statute of 2 ^'3 P. <§• M. cap. 10. will find that an imprison-
ment may be tnade by the justice, as well for suspicion of felony, as
for an absolute charge of felony, and that as well before indictment
as after.
(g-) New Edit. cap. 169. p. 579. (Ji) New Edit. p. 578. (0 2 Co. Inst. 185.
HISTORIA PLACITORUM CORONA. 583
And by the book of 13 E. 4, 9. a. A man that arrests upon sus-
picion of felony, may break open doors, if the party refuses upon
demand to open them, and much more may it be done by tiie justice's
warrant.
If the officer be demanded he must show his warrant, but if he
doth it virtiite officii as a constable, 4'c. it is sufficient to notify that
he is the constable, or that he arrests in the king's name. Dalt. iibi
supra, 6 Co. Rep. 54. a. 9 Co. Rep. 69. a. Mackally^s case.
Lastly, What is to be done after the warrant served, and when
the person accused is brought before the justice thereupon.
If there be no cause to commit him found by the justice upon
examination of the fact, he may discharge him.
If the case be bailable, he may bail them.
If he have no bail, or the case appears not to be bailable, he must
commit him.
And being either bailed or committed^ he is not to be discharged
till he be convicted or acquitted, or delivered by proclamation. Co.
P. C. cap. 100.77.209.
And this leads me to the Mittimus, or the warrant to the gaoler
to receive him; and this is the ground of the felony in case of a
breach of prison.
^ly lord Coke, 2 Inst. 591. makes three essential parts of the
Mitti?nus.
1. That it be in writing sealed by the justice that commits, and
without this part the commitment is unlawful, the gaoler is liable to
a false imprisonment, and the wilful escape by the gaoler, or breach
of prison by the prisoner, makes no felony.
But this must not be intended of a commitment in a court
of record, as the king's bench, gaol delivery, or sessions of [ 584 ]
the peace, for there the record itself, or the memorial thereof,
which may at any time be entered of record, are a sufficient warrant
without any warrant under seal.
2. That it express the cause for which he is committed, namely
felony, and what kind of felony.
This seems requisite to make the voluntary escape or breach of
prison felony, and also it is necessary upon return of the Habeas
Corpus out of the king's bench, because that is in nature of a writ
of right or writ of error to determine, whether the imprisonment be
good or erroneous.
But it seems not to make the commitment absolutely void, so as
to subject the gaoler to a false imprisonment, but it lies in averment
to excuse the gaoler or officer, that the matter was for felony.
And also upon such a general warrant without expressing any
felony or treason, or surety of the peace, the constable cannot break
open a door. T. 9 Jac. B. R. 1 Bulstrode 146. Foster's case.
3. That it have an apt conclusion, viz. There to remain till
deliver d by law.
But if the conclusion be irregular, I think it makes not the warrant
584 HISTORIA PLACITORUM CORONA.
void, but the law will reject that which is surplusage, and the rest
shall stand.
And therefore if the cause be expressed, and the conclusion irregu-
lar, as till farther order s^iven by a justice, yet a breach of prison
under such a warrant will be felony, yea, if the party be removed by
Habeas Cojyus, tho the conclusion be irregular, yet if the matter
appears to be such, for which he is to remain in custody, or be bailed,
he shall be bailed or committed as the case requires, and not dis-
charged ; but the idle conclusion shall be rejected.
And therefore I do think that such a warrant is a good justification
in a false imprisonment, tho the right conclusion be omitted, or tho
the wrong conclusion be inserted, if the matter of the Mittimvs be
otherwise sufficient to charge him in custody, and therefore it is a
lawful warrant notwithstanding the omission or incongruity
r 585 1 of the conclusion, so as to make the voluntary permission of
an escape or the breach of prison felony.
By the statute of 23 H. 8. cap. 2. the felons are to be sent to the
common gaol:(/) and by the statute of 4 jE. 3. cap. 10. the sheriffs
and gaolers are bound to receive them, whether committed by jus-
tices, or attached ex officio by constables.
Previous to the commitment of felons, or such as are charged
therewith, there are required three things, 1. The examination of
the person accused, but without oath. 2. The farther information
of accusers and witnesses upon oath. 3. The binding over of the
prosecutor and witnesses unto the next assizes or sessions of the
peace, as the case requires.
1. The examination of the person accused, which ought not to be
upon oath, and these examinations ought to be put in writing, and
returned or certified to the next gaol delivery or sessions of the peace,
as the case shall require, by the statute of 2 (§' 3 P. (§• M. cap. 10.
and being sworn by the justice or his clerk to be truly taken, may be
given in evidence against the offender.(A^)
And in order thereunto, if by some reasonable occasion the justice
cannot at the return of the warrant take the examination, he may by
word of mouth command the constable, or any other person, to de-
tain in custody the prisoner till the next day, and then to bring him
before the justice for further examination; and this detainer is justi-
fiable by the constable, or any other person without showing the
particular cause for which he was to be examined, or any war-
(i) And not elsewhere; so that it sliould seem that commitments to New Prison or
the Gate-house are irregular; see 2 Co. Inst. 43. Cro. Eliz 830. and of this opinion was
chief justice Holt, in the case of Kendal and Roe, State Tr, Vol. IV. ^. 862. See also
5 H. 4. cd-p. 10. which ordains, "That none be imprisoned by justices of the peace, save
only in the common gaol." \) Co. Rep. 119. b.
(k) Altlio tlfey be not evidence against any other person named in them; it was there-
fore very irregular in the chief justice to refuse reading the examinations of Slern and
Boroski at their trial; see State Tr. Vol. III. p. 470. But qucere by scrjeant TVi/son, if-
the chief justice was not right in such rcfusiil? For by ihe opinion of some judges now
livin-j-, the statute datli not extend to the examination of the party accused, unless he
signed his examination, but only to the witnesses or persons accusing.
HISTORIA PLACITORUM CORON^E. 585
rant in scrip/is. T. 37 Bliz. Hot. 244. B. R. Broughton and
Marshaw.{l)
But the time of the detainer must be reasonable, therefore
a justice cannot justify the detainer of such a person sixteen [ 586 ]
or twenty days in order to such examination. (m)
2. He must take information of the prosecutor or witnesses in
writing upon oath, and return or certify them at the next sessions
or gaol-deUvery, and these being upon the trial sworn to be truly
taken by the justice or his clerk, (S*c. may be given in evidence against
the prisoner, if the witnesses be dead or not able to travel.
3. Before he commit the prisoner, he is to take surety of the pro-
secutor to prefer his bill of indictment at the next gaol delivery or
sessions, and likewise to give evidence; but if he be not the accuser,
but an unconcerned party that can testify, the justice may bind him
over to give evidence ; and upon refusal in either case may commit
the refuser to gaol. Slamf. P. C. p. 163. a. Dalt. cap. 116. p. 326. (ti)
2 (§• 3 P. <5- M. cap. 10. and Dalt. cap. 20. p. 55.(o)
And thus far of arrests by warrant in writing.
Next come to be considered arrests by command ore tenus, or by
order.
The chief justice, or other justice of the king's bench, may com-
mand ore tenus the marshal or any of his deputies, commonly called
tipstaves, to arrest any person, and such command is a good justifi-
cation in false imprisonment brought; altho 1. It be not in writing.
2. Altho no cause is expressed in the command, but only generally
to answer such things as shall be objected against him ex parte domini
regis. 3. And tho the command be ita quod habeas corpus coram
capitali justiciario, Sf-c. quandocunque, 4'C. for it shall be intended,
when the party complains. 4. Altho the defendant declares not in his
justification what he did with him in the mean time. P. 11 Car. B.
R. Throgmorton and Allen., adjudged upon a demurrer.(*)
Altho, as hath been said, a justice cannot grant a warrant to ap-
prehend all persons suspected, but must name their names, yet I have
known in the king's bench upon a riot committed in the
night by persons disguised, and whose names have not been ["587 1
known, the court hath made an order to apprehend persons
that the party, who was injured, suspects, and to bring them into
the court to be examined, and such order of the court is a good war-
rant for the sheriff" or constable to do it ; but what is thus done in the
highest court of ordinary justice, is not to be a pattern for particular
justices or inferior jurisdictions.
I have now done with arrests by writs or warrants.
I come in the next place to arrests, ex officio, without any warrant.
(Z) This case is reported in Moore, 408. by the name of Broughton and MuhJioe.
{m) See the case ofScamge and Tateham, Cro. Eliz, 829. where it was adjudged, that
the time of detainer must not exceed three days,
(n) New Edit. cap. 168. p. 572.
(0) New Edit. cap. 40. p. 106. («) 2 R. A. p. 558.
VOL. I. — 51
687 HISTORIA PLACITORUM CORONA.
If an affray be made in the presence of a justice of peace, or if a
felon be in his presence, he may arrest him, and detain him ex officio
till he can make a warrant to send him to gaol, but then the warrant
must be in writing to the gaoler, P. 23. Car. B. R. SandforcTs case,
and so he may by word command any present to arrest. Dalt. cap.
in. p. 32S.{p)
A constable may ex officio arrest a breaker of the peace in his view,
and keep him in his house, or in the stocks, till he can bring him be-
fore a justice of peace.
So if ,d. be dangerously hurt, and the common voice is, that B.
hurt him, or if C. thereupon comes to the constable, and tells him that
B. hurt him, the constable may imprison him till he knows whether
t/?. dies or lives, T. 43 Eliz. B. R. Dumbletoi's case, or can bring
him before a justice.
So if a felony be committed, and */?. acquaint him that B. did it,
the constable may take him and imprison him, at least till he can
bring him before some justice of peace.
But if there be only an aftVay, and not in view of the constable, it
hath been held he cannot arrest him without a warrant from the jus-
tice; but it seems he may to bring the offender before a justice, tho
not compellible.
Lastly, I come to the authority of every private person in relation
to arrests of felons.
\i A. commit a felony, B. who is a private person, may arrest him
for that felony without any warrant; nay farther, if .^. will
[ 588 3 i^ot suffer himself to be taken, but either resists or flies, so
that he cannot be taken, unless he be slain, if B. or any in
assistance in that case of necessity kill him, it is no felony; de quo
antea,p. 481.
If A. commit a felony in the sight of B. and B. uses not his best
endeavours to apprehend him, or to raise hue and cry upon him, it is
punishable by fine and imprisonment. Co. P. C. p. 53.
If Ji. strike B. dangerously in the presence of C. C. may justify
the imprisoning of ^d. till he can bring him before a justice, or de-
liver him to the constable, tho it be not felony till death.
If a hue and cry be levied upon a felony, and come to the town,
B. the constable, and those of the town are bound to apprehend the
felon if in the town, or if not in the town, then to follow the hue and
cry, otherwise they are punishable upon an indictment. Co. P. C.
cap. 52.
If the constable in pursuit of a felon require the aid of J. S. he is
bound by law to assist him, and is finable for his neglect.(y)
If a felony be committed in fact, and v^. suspects B. did it, and
hath probable cause of suspicion, .^. may arrest i?. for it, and justify
it in an action of false imprisonment. 2 E. 4. 8, b.
The causes of suspicion are many, as common fame finding goods
upon him, and many more, de quibus vide Dalt. cup. llS.(r)
(jP) New Edit. cap. 169. p. 574. (5) 13 //. 7. 10. b. (r) New Edit. cap. 170.
HISTORIA PLACITORUM CORONA. 588
If a felony be committed, and A. suspects B. and B. being in his
house refuse to open the doors, or render himself, it seems A. may
break open the doors to take him; and so may the constable, if A.
acquaint him therewith, especially if A. be present, 13 ^. 4. 9. a.
tho (as hath been said) my lord Coke,A Inst. 111. be to the contrary;
yet the common practice and opinion hath obtained in that case
against my lord Coke, Dalt. cap. 9S. p. 249. ,(5) cap. 78. p. 204.,(/)
7 E. 3. 16. b.
There are special cases where a constable having received informa-
tion of the misdemeanors following, or any private person
without a warrant may arrest and break open doors to arrest [ 589 ]
if they within refuse to open them upon demand, or to deliver
up the party.
1. Where a felony or treason is committed, and the offender is
within the house.
2. Where a felony or treason is committed, and a man suspects
J. S. who is in the house, and hath probable cause of such suspicion,
tho the party be not indicted. 7 E. 3. 16. b. 13. E. 4. 9. a.
3. Where A. hath dangerously wounded B. and then A. flies into
the house, whether it were done in the presence of the constable, or
him that arrests, or not. 7 E. 3. 16. b. Crompt. 171. a.
4. Where there is an affray made in a house, and the doors are
shut, and are refused to be opened, during such affray the constable
or any other may break open the doors to preserve the peace, and
prevent blood shed; but after the affray, it cannot be done without
a warrant, unless a man be dangerously wounded or killed in the
affray.
Yet to avoid question in these cases, it is best to obtain the warrant
of a justice, if the time and necessity will permit.
When a private person hath arrested a felon, or one suspected of
felony, he may detain him in custody till he can reasonably dismiss
himself of him; but with as much speed as conveniently he can, he
may do either of these things.
1. He may carry him to the common gaol, 20 E. 4. 6. b. but that
is now rarely done.
2. He may deliver him to the constable of the vill, who may either
carry him to the common gaol, vide 4. E. 3. cap. 10. or to a justice of
peace to be examined, and farther proceeded against as case shall
require. 10 E. 4.(w) 17 6.
3. Or he may carry him immediately to any justice of peace of the
county where he is taken, who upon examination may discharge,
bail, or commit him, as the case shall require.
And the bringing the offender either by the constable or [590]
private person to a justice of peace is most usual and safe,
because a gaoler will expect a Mittimus iov his warrant of detaining.
And thus far of arrests.
(«^ New Edit. p. 482. (0 New Edit. p. 426..
(u) This is the same year with 49 H. 6, and is so printed in the year-book.
590 HISTORIA PLACITORUM CORONiE.
CHAPTER LI.
OF FELONY BY VOLUNTARY ESCAPES, AND TOUCHING FELONY BY
ESCAPES OF FELONS.
Having in a former chapter said somewhat of arrests, it remains
that somewhat be said touching those felonies that relate to the es-
cape of persons arrested or imprisoned.
And these escapes are of three kinds, 1. By the person that hath
the felon in his custody, and this is properly an escape; and 2. When
the escape is caused by a stranger, and this is ordinarily called a res-
cue of a felon. 3. By the party himself, which is of two kinds, viz.
1. Without any act of force, and this is a simple escape. 2. With an
act of force, viz. by breach of prison.
As to the Jirst, touching an escape separate by the person that
hath a felon in custody, which is properly an escape; and this is of
two kinds, voluntary and negligent.
And Jirst concerning the voluntary escape.
A voluntary escape is when any person having a felon lawfully in
his custody voluntarily permits him to escape from it, or go at large,
and this is felony in case the person be imprisoned for felony, and
treason in case the person be imprisoned for treason ; for the
[ 591 ] latter enough hath been said before; touching the former in
this place.
And altho Mr. Stamford^ Lib. I. cap. 26, 27, 28, 29, 30, 31. hath
collected almost all that can be well said in this case, yet I shall pro-
ceed distinctly herein.
And therein I shall as near as I can, observe this order.
1. I shall consider who shall be said a felon, whose escape makes
a felony in him that voluntarily suffers it;i 2. What shall be said a
having of such a felon in his custody. 3. Who shall be said a per-
son lawfully having such a felon in his custody. 4. What shall be
said a voluntary escape of such a felon out of his custody. 5. Who
shall be said voluntarily to suffer such a felon to escape. 6. What
is the offense of such a voluntary permission of an escape, and where,
and how punishable.
And tho I apply these particulars to a voluntary escape, yet many
of them are applicable unto, and useful for the learning of a negli-
gent escape.
I. Who shall be said a felon, whose voluntary escape is felony in
him that so permits it.
If ..:?. gives B. a mortal wound, and before B. dies the constable
takes Jl. into custody, either with or without a justice's warrant, and
then lets him voluntarily escape before B. is dead, and then B. dies
tho as between A. and B. or »^. and the king, this is is a felony from
the stroke given, and the attainder of Jl. as to the forfeiture of his
lands relates to the stroke; yet this is no felony in the constable, but
HISTORIA PLACITORUM CORONA. 591
only a misdemeanor punishable by fine and imprisonment. 11 //. 4,
12 b. Ploivd. Com. 258. b.
If ^. be indicted for felony, and taken by Capias, or by the warrant
of a justice, or by the constable 6,-c. and committed to prison, and the
gaoler suffers-.^, to escape voluntarily, this is the escape of a felon,
tho -'?. be not attainted at the time of the escape, but the gaoler shall
not be arraigned thereupon till after the attainder of t^. de quo infra.
If a felony be in fact committed, and the constable takes A. upon
suspicion of felony, and after voluntarily suffers him to go
at large, tho A. be not then indicted, yet this is a felonious [ 592 ]]
escape in the constable, tho 42 Assiz. 5. be othervvise,(«) yet
44 Assiz. 12 Dy. 99. a. 43 E. 3. 36. a. accord.{b)
And altho the constable be well assured after the arrest by him
made, that A. was not the person that did it, yet he may not by the
law discharge him, but must bring him before a justice, who may
upon due circumstances discharge, bail, or commit him, as he sees
cause ; but the constable, if he discharges him, is finable.
But if the constable after the arrest finds certainly, that there was
no felony committed, it is held he may discharge him both without
danger of felony, (which is true,) and without any danger of fine
and imprisonment, 13 H. 7. Kelw. 34. a. b. but then it is at his peril,
if in truth there were a felony committed, and the party be guilty;
sed de his vide infra, Dalt. cap. 106./?. 271. accords. {c)
If A. be committed for petit larceny, and so it -appears by the
charge of his Mitlirrms, and the gaoler lets him at large, this is a
contempt, for which he shall be fined, but not felony in the gaoler;
so if he were convicted of petit larceny before the escape. Stamf.
P. C. Lib. I. cap. 21. p. 33. b. 8. E. 2. Coron. 430.
So if a man be originally committed for manslaughter /?er2/?yb;'/?^-
niiim or se defendendo, or were convict only se defendendo ov per
infortunium, and afterwards the gaoler suffers him voluntarily to
escape, it is no felony; but if the commitment or indictment were
for manslaughter, tho in truth it were but se defendendo, yet prima
facie a voluntary escape is indictable as felony, tho in eventu it may
fall out otherwise; de quo infra.
If A. be indicted of murder for the death of B. and par-
doned or acquitted within the year, but left in jail till the [ 593 ]
year be elapsed, upon the statute of 3 H. 7. cap. 1. that the
wife may bring her appeal if she pleases, and after that acquittal, and
within the year, the gaoler suffers him voluntarily to escape, it is
(a) That was the case of a negligent (not a voluntary) escape, and for that reason
could not be felony, tho it is there given as a reason, why it sliould not be adjudged an
escape, because the thief was not taken with the mainouvre, nor at the suit of the pariy,
nor indicted of felony.
(&) This case is plainly the same with 44 Assiz. 12. and seems to be the case of a
voluntary escape; it does not report any resolution of the court, but only says, that the
bailift's who let the thief go, altho he were not indicted, were charged with an escape;
and a qucore is added at the end of the case: and as to the case in Dijer, that was not
the case of the person arresting letting the thief go, but of a third person's rescuing him,
and that is said to be felony, altho he was not indicted. See 1 £. 316. 6.
(c) New Edit. p. 511.
693 HISTORIA PLACITORUM CORONA.
felony prima facie, and the gaoler may be indicted for it as felony;
but if the wife brings not her appeal within the year, or bringing her
appeal «/?. is acquitted, the gaoler ought to be acquitted : vide infra,
JHoivd. Com. 476. b.
If ^. commits felony, and being convicted prays his clergy and
the court take time to advise upon it till another sessions, and in the
mean time he is left in gaol, as he ought to be, and the gaoler volun-
tarily suffer him to make his escape, this is felony in the gaoler, for
such a prisoner stands yet under a conviction of felony, and there-
fore is not by law bailable; but if the felon be retaken, and hath his
clergy, the felony in the escape is purged, and the gaoler is not
indictable after, or if indicted before the clergy allowed, he is to be
acquitted.
If ^. be indicted of felony, and hath his clergy, but is continued
for six months in custody for his farther correction, according to the
power given by the statute of IS Eliz. cap. 7. and the gaoler suffer
him to escape voluntarily, it is a misdemeanor punishable by fine
and imprisonment, but no felony.
If a man be delivered to the ordinary as a clerk convict upon his
own confession, or as a clerk attaint, in which cases he ought not to
be admitted to purgation, and the ordinary notwithstanding admit
him to his purgation, and set him at large, this, at common law, had
been a misdemeanor fineable; but it seems it had not been felony ill
the ordinary ; for in those times there was a pretension, that a clerk
was not within the temporal jurisdiction; but the law concerning
purgation is altered since by the statute of 18 Eliz. cap. 1. and other
statutes; de quo infra, 21 Jlssiz. 12. 9 E. 4. 28.
Thus far what shall be said a felony.
11. What shall be said to be a having in custody.
Every man is bound by law to pursue and take a felon; and if he
makes not pursuit, he is fineable.
But if ./^.commits a felony in the presence of B. and B.
[ 594] never takes him, nor attempts it, this is not felony in B. for
B. had him not in his custody.
So it is if .^. commits a felony, and B. receives him knowing him
to be a felon, and then B. voluntarily suffers him to depart, tho the
receipt makes him accessary after, yet it is no escape by B. because
he never arrested him, and so had him not in custody. 9 H. 4. \.{d)
If./?, being acquit of felony, judgment is given, that he shall go
free paying his fees, tho the gaoler lets him go before fees paid, it is
not felony, for by that judgment he is no longer in custody as a felon.
21 //. 7. 17.
If the constable arrest a man for felony, and bring him to the
gaol, and the gaoler refuse to receive him, yet in law he is in the
custody of the constable, and if he lets him go, he is chargeable in an
escape. 10 //. 4. 7. a. Escape 8.
If A. have a franchise to Iiave the custody of felons in his gaol [for
(«/) 24 6. '
HISTORIA PLACITORUM CORONA. 594
three days,](e) and then to deliver over to the sheriff or county-gaol,
and after the three days he offers him to tlie county-gaol, and the
gaoler do not receive him, he yet remains a prisoner to Jl. and if he
suffers a voluntary escape, it is felony, 27 Jis^iz. 27. yet in both
these cases the gaoler is punishable for not receiving the felon by
4 E. 3. cap. 10.
If A. arrest /?. of felony, and deliver him to the constable or to
the vili, and they receive him, Jl. is discharged of the custody, and
the escape after is chargeable upon the constable or vill, and if the
constable or vill deliver iiim to the sheriff or his gaoler, and he re-
ceive him, the constable and vill are discliarged of the custody, and
the sheriff or gaoler is chargeable wuh the escape after. 3 E. 3.
Coron. 328. 337.
As touching escapes without arrests, they belong not to this title of
voluntary escapes; sed hsec vide infra <§• supra.
If A. the sheriff of B. hath a felon in gaol, and then C. is made
sheriff, till the prisoner be turned over by indenture to the new sheriff,
the custody of him remains in J2. and he or his gaoler is
chargeable for a negligent escape, and his gaoler chargeable [ 595 ]
for a voluntary escape.
If the bailiff of a franchise, that hath a gaol, hath the custody of
a felon, he is chargeable for his escape, and not the sheriff or his
goaler.
III. Who shall be said a person lawfully having the custody of a
felon: this hath been touched in the former section, but now shall be
farther prosecuted.
If Ji. a meer private man knows B. to have committed a felony,
he may thereupon arrest him of felony, and he is lawfully in the cus-
tody of./?, till he be discharged of him by delivering him to the con-
stable or common gaol ; and therefore if he voluntarily suffers him
to escape out of his custody, tho he were no officer, nor B. indicted,
it is felony in A.
So it is, if a felony be in fact committed, and A. hath a probable
cause to suspect B. and accordingly suspects and arrests him, B. is
lawfully in the custody of .^. for suspicion of felony; and if he volun-
tarily lets him escape, it is felony in A. in eventit, viz. if B. proves
really guilty of the felony.
And accordingly if A. deliver the party so arrested to the con-
stable's custody, he is lawfully in his custody, and if he suffer the
escape voluntarily, it is felony in eventu. 44 Assiz. 12.
If a justice of peace make a Mittimus to the gaoler for felony
with an unapt conclusion, as //// the justice give order for his
delivery, whereas it should be till he be delivered by due course of
law, tho this warrant be not formal, yet the felon is lawfully in his
custody, and if he let him voluntarily escape, it is felony, for he is
sufficiently ascertained of the crime with which he is charged.
(e) These words are not in the original MS. but yet are plainly supposed in the argu-
ment, and are mentioned in the case here quoted by our author, viz. 27 Assiz. 27.
595 HISTORIA PLACITORUM CORON^E.
And it seems to me, if the Mittimus be general and contain no
certain cause, the the gaoler is not bound to receive him upon such
a Mittimus, yet if he be acquainted what the crime is for which he
is committed, if he suffer him voluntarily to escape, it is felony.
For if a private person or a constable arrests a man for felony, and
carry him to the common gaol, (as he may do by law, IS E. A. 9.
and the gaoler is bound to receive him by the statute (/) of
r 596 ] 4 E. 3. cap. 10. if the constable or person that delivers him,
acquaints the gaoler it is for felony, it is at the peril of the
gaoler if he lets him escape, and yet there is no Mittimus in that
case, but a notice ore tenus.
The stocks is the prison of the constable, and so long as he is in
the stocks he is in the constable's custody, and therefore if the con-
stable wilfully let a felon escape out of the stocks, and go at large,
it is felony in the constable, unless it be to bring him to a justice, or
to a safer or more convenient custody.
IV. What shall be said a voluntary escape of a felon in custody,
for it must be voluntary escape to make felony.
If the prisoner be rescued, or rescue himself against the will of
him that hath him in custody, this is no voluntary escape, nor is the
gaoler, &c. punishable for the same.
If the prison be fired, and the gaoler lets out the prisoners, there
being no other means to save their lives, and uses the best means he
can by his officers and irons to keep them safe, and this without
fraud, or if enemies force him to open the prison doors, and he doth
it to save his life, it excuseth from felony.
And if it be done by rebels, tho this excuse not the gaoler or
sheriff in civil actions, but he is liable to an action of debt, or upon
the case for the escape, because the sheriff hath his remedy over, yet
it excuseth the gaoler from felony, and also from a fine, if it be vis
major, quam cui resisti potest.
If a justice of peace bail a person not bailable by law, it ex-
cuseth the gaoler, and it is not felony in the justice, but a negligent
escape, for which he is fineable at common law, 25 E. 3, 39. ,(^)
and by the justices of gaol-delivery by the statute of 1 <§- 2 P. fy M.
cap. 13.
And the like in case of a sheriff, under-sheriff, constable, bailiff
of a liberty bailing one that is not by law bailable, it is not a volun-
tary escape, at least unless done by design to deliver the prisoner
for ever, but it is a negligent escape punishable at common
[597 ] law, or according to the statute of 3 E. 1. cap. 15. by loss of
office, fine, and three years imprisonment.
And therefore I think, that if a justice of peace bail a person, that
.confesseth a felony before him, it is no voluntary escape, but fineable
(/) This statute obliges the gaoler to receive felons by the delivery of the constables
or townships, but says nothing as to the delivery by private persons.
{<r) In the last edition of the year-books, which is in this place mispag-ed, it is
25 E. 3. 82. a.
HISTORIA PLACITORUM CORONA. 597
as above, for it is error scientise, 2 R. 3. 10. contrary to the opinion
of Crompf. 39. a. Dull. p. 276. (A)
If a gaoler voluntarily licence a felon to wander out of the bounds
of the prison and to return again, if the prisoner returns again to the
gaol before the gaoler be indicted, so as he be iii custody, it is held
by some this will not excuse a voluntary escape as to the point of
felony, but certain it is that it is punishable as a misdemeanor, and
if he had never returned, it had been such an escape, as would have
been felony, tho perchance the licence were special to go out and
come in at night. 22 E. 3. Coron. 242. 8 E. 2. Coron. 431. because
he cannot apportion his own wrong and breach of duty.
• V. In whom the voluntarv escape shall be.
In all civil causes the shernf is to be responsible, or the gaoler at
election, as if the gaoler, or bailiff of a sheriff suffer either voluntarily
or negligently an escape of a person imprisoned for debt, the sheriff
is chargeable with an action upon the escape, for the gaoler or bailiff
is the sheriff's officer or minister, and gives him security. 14 E, 3.
cap. 10. 19 i/. 7. cap. 10.
But if the gaoler being placed there by the sheriff voluntarily
suffer a felon in liis custody to escape, this, in os much as it reacheth
to life, is felony only in the gaoler that was immediately trusted with
the custody, not in the sheriff.
But whether the escape was voluntary or negligent, yet the sheriff
may be indicted for it so as to subject him to a great fine and impri-
sonment for the offense of his gaoler, tho not fo make him guilty of
felony. Dalt. cap. 106.;?. 213.[i) Doctor and Sludenl A2.{k)
For the escape must be voluntarily permitted in him that permitted
it, which could not. be in the high sheriff, tho it were such in the
gaoler, for he was not privy to it, and therefore could not
do Wfelonicl, but it was a negligent escape in him in trusting [ 598 T
such a person with the custody of his prisoners, that would
be false to his trust, and therefore the sheriff shall pay, but not cor-
porally suffer, for the miscarriage of his gaoler.
But if the gaoler were a gaoler in fee, as antiently constables of
castles were, the sheriff should not answer in any kind for the default
of such gaoler or constable: but now by the statutes of 14 E. 3. cap.
10. and 19 ^. Leap. 10. gaols of counties are rejoined to the counties.
But for escapes committed by gaolers of gaols in particular fran-
chises, as the Gale-house at Westminster belonging to the dean and
chapter of Westminster., escapes there permitted concern not the
sheriff, but the particular gaoler and lord of the franchise.
VI. How and in what manner, and before whom felonious escapes
shall be determined, tried and adjudged.
It is to be known, that I may say it once for all, altho the felony
for breaking of prison may be heard, tried and determined before the
felony, for which he was committed, as shall be said; yet in case of
a felony for the wilful escape or rescue, of a person committed to
Qi) New Edit. p. 512. (i) New Edit. p. 509. {k) Dialog. 2. cap. 42.
598 HISTORIA PLACITORUM CORONA.
prison for felony, tho the party that voluntarily permits such iescape,
or rescues the prisoner, may be indicted for these offenses as felonies
before the principal felony in him that escapes or is rescued be tried,
yet he shall not be arraigned or put upon his trial, till the principal be
convicted or attainted; and the reason is, because possibly the person
escaping may be found not guilty, or if guilty, yet of such a fact as
is not capital ; as of petit larciny, se dcfendendo, per infortunium^
in which case the rescuer or officer ought to be discharged: nay, if
the principal person be only convict and not attaint, but hath his
clergy, I think the gaoler or rescuer shall never be put to answer to
the escape or rescue, but be discharged, as the accessary, where the
principal hath his clergy, shall be discharged thereby; for the rescuer
and officer, that permits the escape, are% kind of accessaries.[l]
But in these cases the gaoler or rescuer may be fined and
[ 599 '\ imprisoned for their misdemeanor, but shall not be charged
with felony, where the principal is discharged. 2 Co. Instit.
p. 592.
Again, it is to be remembered, that there is a voluntary escape be-
fore indictment, and a voluntary escape of a party indicted of felony.
1. If the party tliat escapes were not indicted at the time of the
escape voluntarily permitted, the indictment of the gaoler (and so in
case of a rescue) ought to surmise, that de facto a felony was com-
mitted, and that the person escaping was imprisoned for that felony
or suspicion of it.
And I need not say this must be proved upon the evidence against
the gaoler, for, as I said before, the gaoler cannot be arraigned till
the principal be attainted by verdict, confession, or outlawry, and the
record of such attainder must be shewed or proved.
2. But if the party that escaped were indicted, and so taken by
Capias^ and then escape, tho, as I said before, the gaoler or rescuer
cannot be arraigned and tried till the principal be attainted, yet the
indictment for the escape or rescue need not surmise a felony done,
but only recite the substance of the indictment against him that
escapes. 1 E. 3. 16. 6. 2 E. 3. Coron. 158.
And the like law is in case of felony for breach of prison. 2 Co.
Instit. p. 590.
Again it is to be known, that as to the voluntary suffering of an
escape or rescuing of a felon, tho the felony be not within clergy, yet
the escape or rescue are within clergy, and tho the prisoner were in-
dicted or attainted of several felonies, yet the escape or rescue of such
a prisoner makes but one felony, and he shall be indicted but of one
escape; but if Ji. and B. be indicted of one felony, and the gaoler
voluntarily suffer both to escape, the gaoler may be indicted severally
for both.
The means of bringing an officer to judgment cannot be barely by
the calling of the record of the prisoners over, as is usually done in
[1] See note, post p. 605.
HISTORIA PLACITORUM CORONA. 599
the king's bench, because tho this may be a sufficient cause to con-
vict of a negligent escape, yet it cannot appear thereby that it is vo-
luntary; the marshal or gaoler may be fined upon a record
thereof made, but he cannot be convict of a felony, 39 H. G. [ 600 ]
33. but there must be an indictment or presentment of the
felonious and voluntary escape.
And tho by the statute of Westm. 1. cap. 3.(/) amercements upon
the country for the escapes of felons cannot be set but by the justices
in Eyre., or by the king's bench, 21 Jlssiz. 12. 27 Assiz. 27, or, as it
seems, by justices of general oyer and terminer; yet the hearing and
determining of escapes is at this day within the jurisdiction of justices
of peace, or any other justices, by the statutes of 1 R. 3. cap. 3. 31
E. 3. cap. 14.
And thus far concerning voluntary escapes of felons, where it is
felony and where not.
In the next chapter I shall say something concerning negligent
escapes, tho this hath been before, cap. 50. in part handled.
CHAPTER LII.
TOUCHING NEGLIGENT ESCAPES.
Negligent escapes of felons are not felony, but punishable by fine
upon the parties that suffer them.
These negligent escapes are of two kinds, 1. By an officer or some
particular person or persons, that hath a felon in custody, 2. Or by
vills or townships, whether the felon be taken and in custody, or not
taken.
I. First as to negligent escapes by officers or particular persons
these things are considerable.
1. What shall be said a negligent escape. 2. What the conviction
of such negligent escape. 3. What the punishment of it, and by
whom.
As to the first of these, what shall be said a negligent
escape hath been partly before described, only some things [ 601 ]
I shall add.
If a prisoner for felony break the gaol, this seems to be a negligent
escape, because there wanted either that due strength in the gaol that
should have secured him, or that due vigilance in the gaoler or his
officers to have prevented it, and therefore it is by law lawful for the
gaoler to hamper them with irons to prevent their escape,(a) and if
(/)2 Co. Instit. 165.
(o) Arid therefore this liberty can only be intended, where the officer has just reason
to fear an escape, as where the prisoner is unruly or makes any attempt to that purpose;
bat otherwise, notwithstanding the common practice of g-aolers, it seems altogether un-
warrantable, and contrary to the mildness and humanity of the laws of Ev^land, by
which gaolers are forbid to put their prisoners to any pain or torment; see Co. P. C.
601 HISTORIA PLACITORUM CORONiE.
this should not be construed a negligent escape, gaolers would be
careless either to secure their prisoners, or to retake them that escape,
if he should in such a case be exempt from pecuniary punishment;
and we see by daily experience in civil cases of men in execution or
arrested for debt, if they break prison the sheriff is changeable.
But if a private person arrest a felon, and he escapes by force from
him without any default in him, tho the township shall be amerced,
as shall be said, yet it seems it excuseth the party, for he being a pri-
vate person cannot raise power to take or detain a fejon.
But if a sheriff, bailiff, constable, or other ofiicer hath the custody
of a prisoner bringing him to the gaol, it seems that a simple escape
by the rescue of the prisoner himself doth not excuse him a toto,
though it mayff ^a«/o, because he may take sufficient strength to his
assistance; but if he be rescued before he be brought to gaol, qtissre,
whether it be not an excuse of an escape, as in case where a man is
arrested upon a mesne process, and in carrying to gaol be rescued, the
return of the rescue excuseth the sheriff, 39 Eliz. C. B. Croke,n.22.
Conyer^s case; but it is no excuse if he be taken in execution
\_ 602 ~\ and rescued, for there the sheriff shall be answerable not-
withstanding the rescue, but it seems the rescue is no excuse
in case of felony. 3 E. 3. Coron. 328. 337.(6)
And upon the same reason it is, that if a felon be attaint and be
carried to execution, and be rescued from the sheriff, the sheriff is
punishable notwithstanding the rescue, for there is judgment given,
and the sheriff should have taken sufficient power with him, and
therefore in that case the township is not fineable: vide 21 ^ssiz. 54.
If a prisoner for felony be in gaol and escape, and the gaoler pur-
sue after him, he may take him seven years after, tho he were out of
his view, 13 ^. 4. 9. a. 14 H. 7. 1. a. but that will not excuse the
gaoler from a negligent escape, tho it may excuse a lanto; for if the
gaoler hath once lost the view of his prisoner, tho he take him after,
it is an escape, but if he retake him' upon a fresh pursuit, and hath
still the view of him, it is no escape, nor punishable. 8 E. 2. Coron.
400. 22 E. 3. Coro}i. 236. M. 28. E. 3. RoL 32. Bex Hertf. Casus
Jihbatis Sancti Jllbani. M. 45. E. 3. Rot. 17. in dors. Rex Essex.
But if a man be arrested for felony, and in bringing to gaol by this
sheriff's baililT or constable he makes his escape, and they follow him
and keep the view of him, but cannot take him without killing him,
whereby he is kild in the pursuit, yet the sheriff or constable, or town-
ship, that let him escape, shall be fined for the escape, because tho
the party be kild in the fresh pursuit, he cannot now be brought to
p. 34 <.Sf 35. Custodes ganlnrum pmnam sibi cnminissis non auireavt, nee eos torqnennt vel
redimant^ sed ornni savitid remold piHatrque adhibild judicia debite exequantur, Flet.
Lib. I. cap. 26. and llic Mirror of Justices, cap. 5. § 1. n. 54. says, It is an abuse that
prisoners should be charged with irons, or put to any pain before they be attainted of felo-
ny; and lord Coke in liis comment on tlic statute of Westm. 2. cap. ll. is express, that by
the common law it might not be dune. 2 Instit. 381.
{b) 'I'licse cases, as also Couier^ case licrc mentiond, prove nothing particularly as to
a rescue, but only in general, that a shcritF shall be liable in case of an escape.
HISTORIA PLACITORUM CORONA. 602
judgment, and yet by his flight, if presented by the coroner, he for-
feits his goods. 3 E. 3. Coron. 328 and 346.
If a felon escape out of the gaol by negligence, tho the gaoler be
fined for it, he may retake the felon at any time after, for the felon
shall not take the advantage of his own wrong, or the gaoler's pun-
ishment, but his retaking shall not discharge the gaoler's fine, and
so is the book to be intended. 13 E. 4. 9. a.
2. Touching the conviction of a negligent escape.
The proper way of conviction is by presentment and trial [ 603 ]
thereupon.
Yet where the prisoners be of record in a court, if the gaoler being
called cannot give an account where a prisoner is, this is a conviction
of an escape, but seems not to be presently a conviction of a volun-
tary escape, unless the gaoler confess it: vide 27 H. 6. 7. 39 H. 6. 33.
so in some cases the coroner's roll is a conviction of an escape, vide
3 E. 3. Coron. 352. so if the dozeners present a felon taken and de-
livered to the sheriff by the vill, but shew not what sheriff. 3 E. 3.
Coron. 345. (c)
Where an officer is to be charged either with a voluntary or neg-
ligent escape, the bare presentment of the escape by the grand inquest
or the dozeners in Eyre, or upon a commission of Oyer and Terminer,
or in the king's bench, is not alone sufficient to convict the officer,
because upon his conviction, tho but of a negligent escape, he is to
be fined.
But if the dozeners in Eyre or in the king's bench present the es-
cape of a felon, whereby the vill is to be amerced, because this is but
an amercement, and the justices may [not in this case(f/)] set a fine
but an amercement, de minimis non curat /eo*, and therefore the pre-
sentment is not traversable: vide 3 E. 3. Coron. 291. <^' ibidem 3 E. 3.
Coron. 328. 346. Stamf. P. C. Lib. I. cap. 33. fol. 35. b.
An escape is presentable in a leet, but they cannot set a common
fine or amercement there, but it ought to be sent to the next Eyre,
4'C. or may be removed into the king's bench by Certiorari, and
there the common fine or amercement set; and this by the statute of
Westm. 1. cap. 3.
3. As to the punishment of a negligent escape by an officer or
other that hath the felon in custody, it is by fine and imprison-
ment.
If the felon be attainted, it is said that the fine is to be an [ 604 ]
hundred pounds, and if he be only indicted, then an hun-
dred shillings, Stamf. P. C. p. 35. but the fine in truth is more or
less according to the quality of the offense, and sometimes of the
(c) The words of the book are, " When the dozen present, that a felon is taken for
felony and delivered to the sheriff, they adjudge it for an escape in Eyre, if they do not
say to what sheriff by name, for a man may inquire his rolls to see whence the prisoner
comes, ^c. and if they do not find in the sheriff's roll, that he was charged with him, or
if they do not find how he got out of his custody according to the law of the land, it
shall be adjudged an escape in the sheriff.
(<f ) Tiiese words are wanting in the MS, but the sense of the place seems plainly to
require them.
604 HISTORIA PLACITORUM CORONA.
offender: vide 3 E. 3. Coron. 370. a bishop fined one hundred
pounds for an escape.
Communia Scaccario, M. 36 E. 3. n. 5. The constable of a castle
under the duke of /,«nc«5/er permitted a negligent escape: It was
ruled, 1. That in default of the constable the duke of LancasteVy
that put him in, should be fined, 2. That tho the duke were dead,
yet his executors should be fiued,(e) and they were fined five pounds
for negligent escape.
II. I come to those fines, that are for escapes of felons either before
or sometimes after arrest.
And this is that which is set upon vills, towns, cities, and some-
times upon hundreds and counties, and is usually called escapium,
and those that have franchises to be quit de murdro, latrocinio,
escapiis, are intended of those common fines set upon vills or hun-
dreds for those offenses, and then he that hath such a liberty granted
by the king to be quit de escapiis, hath a discharge for the rate or
portion of such a common fine or amercement that comes to his
share; and this franchise or liberty generally granted to be quit de
escapiis extends not to voluntary escapes by officers or others, but as
I said to the rate or portion chargeable upon them by such common
fine or amercement for negligent escapes.
If a murder, manslaughter, or killing of a man se defendendo be
committed in a vill not inclosed in the day-time, and the murderer,
4'C. be not taken, the vill shall be amerced, altho it be done after sun-
set, before day-light be gone. 22 E. 3. Coron. 238. 3 E. 3. Cordon.
293, 302. 3 H. 7. cap. 1.
And if the murder be committed in a town inclosed in the day or
night, and the murderer or manslayer escape, the town shall be
amerced, because by the statute of Winchester, they ought to keep
their gates shut from sun-set to sun-rising. 3 E. 3. Coron. 299.
3 H. 7. cap. 1.
If a felony be committed in a vill, and they take the
r 605 3 felon, and commit him to four men to carry him to gaol,
and they suffer him to escape, the vill shall be amerced.
3 E. 3. Coron. 34G.
If a felony be committed in a vill, and the felon taken by them
of the vill, and he escape from them to the church of the same
vill, and from thence before abjuration he escapes again, the vill
shall be amerced for two escapes at common law, for they should
have kept him in the church till abjuration, Ǥ-c. 8 E. 2. Coron. 422.
But if a person attaint, as they are carrying him to execution,
escape to a church, and from thence make an escape, the vill were
notamerceable, because he could not abjure being attaint, and the-ro-
fore the vill were not bound to watch him, 27 Jlssiz. 54. vide Rot.
Pari. 45 E. 3. n. 25. 50 E. 3. n. 183. But now abjuration and
sanctuary are ousted,(/) and with it much of this old learning of
escapes is antiquated.
(e) See 2 Co. Instil. 382. (/) By 21 Jac. cap. 28.J. 7.
HISTORIA PLACITORUM CORONJii. 605
If a prisoner for suspicion of felony be bronglit to the hundred
court, and the court grant him Hberty to seek his voucher or war-
rant, and he escape, the hundred shall be amerced. 3 E. 3. Cornn.
316. and so it is if a manslaughter be committed out of any vill.
Stnmf. P. C. 34. a.
If the vill answers not the amercement for an escape, the hun-
dred shall be distrained^ and if the hundred answer not, the
county shall be charged therewith and distrained. Stamf. P. C.
p. 34. b.
And thus far touching escapes both voluntary and negligent.[l]
[1] An escape is, where one that is arrested gaineth his liberty before he is delivered
by the course of law. Terms de la Ley.
Escapes are of three kinds. 1. By a person who has the offender in his custody; this
is properly called an escape. 2. Caused by a stranger ; this is commonly called a res-
cue. 3. By the party himself; either without force, which is simply an escape, or with
force, %vhich is prison-breaking.
Escape by the party himself. — As all persons are bound to submit themselves to the
judgment of the law, and to be ready to be justified by It, whoever in any case refuses
to undergo that imprisonment which the law thinks fit to put upon him, and frees him-
self from it by any artifice before such time as he is delivered by due course of law,
is guilty of a high contempt, punishable with fine and imprisonment. 2 Hawk. c. 17.
s. 5. 4 Blac. Com. 129.
Escape suffered by a private person. — It seems to be a good general rule, that wher-
ever any person hath another lawfully in his custody, whether upon an arrest made by
himself or another, he is guilty of an escape, if he suffer him to go at large before he
hath discharged himself of him, by delivering over to some other who by law ought to
have the custody of liim. 2 Hawk. c. 20. s. 1.
And the law is generally the same, in relation to escapes suffered by private persons,
as by officers. Id.
Escape suffered by an officer. — Whenever an officer, having a party lawfully in his
custody on a charge of felony, voluntarily permits him to escape, the officer is involved
in the legal guilt of the crime charged on his prisoner. 2 Hawk. c. 19. s. 40.
Where he negligently permits a prisoner to escape, he is guilty of a misdemeanor, and
he is guilty in this degree if a prisoner in his charge commits suicide. Dalt. J. c. 159.
It is laid down, that whoever, de facto, occupies the office of a gaoler, is liable to an-
swer for a negligent escape, and that it is no way material whether his title to the office
be legal or not. 2 Hawk. c. 19. s. 28.
It appears to have been holden, that it is an escape in the constable to discharge a
person committed to his custody by a watchman, as a loose and disorderly woman, and
a street-walker, although no positive charge was made. Rex v. Bootie, 2 Burr. 864.
What is an escape, and what a negligent or voluntary one. — In order to make an
escape there must be an actual arrest ; and therefore if an officer, having a warrant to
arrest a man, see him shut up in a house, and challenge him as his prisoner, but never
actually have him in his custody, and the party get free, the officer cannot be charged
with an escape. 2 Hawk. c. 19. s. 1.
The arrest must be also justifiable ; for, if it be either for a supposed crime, where no
Buch crime was committed, and the party neither indicted nor appealed, or for such a
slight suspicion of an actual crime, and liy such an irregular mittimus as will neither
justify the arrest nor imprisonment, the officer is not guilty of an escape, by suffering
the prisoner to go at large. 2 Hawk. c. 19. s. 2.
And as the imprisonment must be justifiable, so it must be also for a criminal offence
Jd. s. 3.
The imprisonment must also be continuing at the time of the escape; and its continu-
ance must be grounded on that satisfaction which tlie public justice demands for the
crime committed. So that if a prisoner lie acquitted, and detained only for his fees, it
will not be criminal to suffer him to escape, though the judgment were that he be dis-
605 HISTORIA PLACITORUM CORONA.
charged paying his fees; .he being detained, not as a criminal, but only as a debtor: but
if a person convicted of a crime be condemned to imprisonment for a certain time, and
also '' until he pays his fees," and he escape after such time has elapsed, without paying
them, perhaps such escape may be criminal, for it was part of the punishment that the
imprisonment be continued till the fees should be paid. 2 Hawk. c. 19. s. 4. 1 Russ.
C. c^ M. 531.
Also, it is an escape in some cases to suffer a prisoner to have greater liberty than by
the law he ought to have; as to admit a person to bail who by law ought not to be
bailed, but be kept in clos^ custody. 2 Hawk. c. 19. s. 5.
So if a gaoler or other officer shall license his prisoner to go abroad for a time, and to
come again, this is an escape, even though the prisoner return again. Dult. c. 159.
If the gaoler so closely pursue the prisoner who flies from him, that he retakes him
without losing sight of him, the law looks on the prisoner so far in his power all the time,
as not to adjudge such a flight to amount at all to an escape: but if the gaoler once lose
sight of the prisoner, and afterwards retake him, he seems in strictness to be guilty of aa
escape. 2 Hawk. c. 19. s. 6. But it must be by a known officer of the law.
T. Hill, a yeoman warden of the tower, and Dod, the gentleman gaoler there, were
indicted for the negligent escape of Colonel Parker, committed to the tower for high
treason. Lord Lucas, the constable of the tower, had committed the Colonel to the care
of the defendants, to be kept in the house of the defendant. Hill. The judges present,
(O. B. January, 1694,) were of opinion, that the defendants were not such officers as
the law took notice of, and therefore could not be guilty of a negligent escape. It was •
merely a breach of trust to Lord Lucas, their master.
Upon the same principle, S. Stick, a warder of the tower, who was indicted at the
same session for the negligent escape of Lord Clancarty, was acquitted. Wherever an
officer, who hath the custody of a prisoner, charged with and guilty of a capital offence,
doth knowingly give him his liberty, with an intent to save him from his trial or execu-
tion, tills is a voluntary escape. 2 Hawk. c. 19. s. 10. A negligent escape is, when the
party arrested or imprisoned doth escape against the will of liim that arrested or impri-
soned him, and is not freshly pursued and taken again before he hath lost sight of him.
Dalt. c, 159. If a constable or other officer shall voluntarily suffer a thief, being in his
custody, to go into water to drown himself, this escape is felony in the constable, and
drowning is felony in the thief; otherwise if tlie thief shall suddenly, without the agserit
of the constable, kill, hang, or drown 'himself, this is but a negligent escape in the con- "
stable. Id. . '_
If an officer hath arrested a man by virtue of a warrant, and then taketh bis promise
that he will come again, and so I^tteth him go, the officer cannot, after arrest, take him
again by force of his former warrant, for that this was by consent of the officer. But if
he return, and put himself again under the custody of the officer, it seems that it may be
properly argued that the officer may lawfully detain him, and bring him before the jus-
tice, in pursuance of the warrant. Dalt. c. 169; 2 Hawk. c. 13. s. 9.
But if the party arrested had escaped in his own wrong, without the consent of the
officer, now, upon fresh suit, the officer may take him again and again so often as he
escapeth, although he were out of view, or that he shall fly into another town or county,
and bring him before the justice upon whose warrant he was first arrested. Dalt. c. 169.
p. 405. And it is said, generally, in some books, that an officer who hath negligently
suffered a prisoner to escajie, may retake him wherever he finds him, without mention-
ing any fresh pursuit; and indeed since the liberty gained by the prisoner is wholly
owing to his own wrong, there seems to be no reason he should ta^e any manner of ad-
vantage from it. 2 Hawk. c. 19. s. 12.
And wherever a person is^Iawfully arrested for any cause, and afterwards escapes, and
shelters himself in a house, the doors inay be broken open to take him, on a refusal of
admittance. 2 Hawk. c. 14. s. 9. It is perhaps the better opinion, that wherever a pri-
soner, by the negligence of his keeper, gets so far out of his power that the keeper loses
sight of him, the keeper is punishable for the escape, notwithstanding he took him im-
mediately after; and it is clear that he cannot excuse himself from an escape by killing
a prisoner in the pursuit, though he could not possibly retake him; but must in such
case be content to submit to such punishment as his negligence shall appear to deserve.
2 Hawk. c. 19. s. 13.
In the case of Ryland v. Lavender, 2 Binff. G5; 9 Moore, 71. S. C. the defendant, aa
gaoler, covenanted with the sheriff, among other things, to attend the quarter sessions,
and to remove prisoners, under writs of habeas corpus, without permitting them to
escape. The defendant being engaged at the quarter sessions, the shcrifl", upon a Writ
HISTORIA PLACITORUM C0R0N7E. 605
of habeas corpus for the removal of a prisoner, directed his warrant to the defendant, and
" W. W. by me (the slieritf) for this time only thereto specially appointed." W. W , who
was the defendant's turnkey, proceeded with the prisoner towards the place of destina-
tion. Tlie prisoner having- escaped, tlie court of C. P. held that the sheriff having spe-
cially directed the warrant to W. W., the defendant was not liable upon his covenant.
' Indictment for an Escape'. — The indictment for an escape, whether negligent or volun-
tary, must show that the party was actually in tiie defendant's custody for some crime,
or upon some commitment on suspicion; and it is not sufficient to say that he was in the
defendant's custody, and charged with such crime; for that is no allegation that he was
in custody upon that charge. 2 Hawk. P. C. c. 97. s. 4. It should show that the pri-
soner went at large, and the time when the offence was committed for which the party
was in custody; not only that it may appear that it was prior to the escape, but also that
it was subsequent to the last general pardon. An indictment for a voluntary escape,
must allege that the defendant feloniously and voluntarily permitted the prisoner to go at
large, and must also show the species of crime for which the party was imprisoned ; for
it will not be sufficient to say in general that he was in custody for felony, &.c. It is
questionable, however, whether such certainty, as to the nature of the crime, be necessary
in an indictment for a negligent escape, as it is not, in such a case, material whether
the person who escaped were guilty or not. 1 Russ. 374 ; Chitt. Coll. Stat. tit. Escape.
Evidence, Trial, and Conviction for an Escape. — It seems to be clear, that a keeper
who voluntarily suffers another to escape who was in his custody for felony, cannot be
arraigned for such escape as for felony, until the principal be attainted, for that the
felony of the prisoner shall not be tried between the king and the keeper, because the
prisoner is a stranger thereunto; yet he may be indicted and tried for it as a mis-
prision before the attainder of the principal offender. 2 Hawk. c. 19, s. 26; 2 Inst.
591,592.
By the 4 Geo. IV. c. 64, s. 44. "And, to the intent that prosecutions for escapes,
breaches of prison, and rescues, may be carried on with as little trouble and expense as
is possible, be it enacted. That any offender escaping, breaking prison, or being rescued
therefrom, may be tried either in the jurisdiction where the offence was committed, or
in that where he or she shall be apprehended and retaken; and in case of any prosecu-
. tioii for any such escape, attempt to escape, breach of prison, or rescue, either against the
offender escaping, or attempting to escape, or having broken prison, or having been res-
cued, or against any other person or persons concerned therein, or aiding, abetting, or
assisting the same, a certificate given by the clerk of assize, or other clerk of the court
ill which such offender shall have been convicted, shall, together with due proof of the
identity of the person, be sufficient evidence to the court and jury of the nature and fact
of the conviction, and of the species and period of confinement to which such person was
sentenced." The certificate, to make it evident under this enactment, must set forth the
effect and substance of the conviction. Kex v. Watson, R. Sf R. 468.
Punishment of an Escape. — If a felon escape before arrest, it is not punishable as a
felony; but for the flight he forfeits his goods when presented. HaWs Sum. 111.
Wherever a person is found guilty upon an indictment or presentment of a neglis:ent
escape of a criminal actually in his custody, he is punishable by fine and imprisonment,
according to the quality of the offence. 2 Hawk. c. 19, s. 31 ; c. 20, s. 6.
And it seems to be tl)€ better opinion, that the sheriff is as much liable to answer for
a negligent escape suffered by his bailiff as if he had actually suffered it himself, and
that the court may charge either the sheriff or the bailiff for such an escape; and if a
deputy gaoler be not sufficient to answer a negligent escape, his principal must answer
for him. 2 Hawk. c. 19, s. 29 ; Rex v. Fell, 1 Ld. Raym. 424.
It seems to be generally agreed, that a voluntary escape suffered by an officer amounts
to the same kind of crime, and is punishable in the same degree, as the offence of which
the party was guily, and for which he was in custody; whether it be treason, felony, or
trespass, (2 Hawk. c. 19, s. 22.) if the cause be expressed in the commitment. 2 Inst. 52.
But yet a voluntary escape is no felony, if the act done were not felony at the time of
the escape made, as in case of a mortal wound given, and the party not dying till after
the escape; but the officer may be fined to the value of his goods. Dalt. c. 159.
Also a voluntary escape suffered by one who wrongfully takes upon him the keeping
of a gaol, seemfe to be punishable in the same manner as if he was never so rightfully
VOL. I. — 52
605 HISTORIA PLACITORUM CORONA.
entitled to such custody ; for that the crime is in both cases of the same ill consequence
to tlie public: and there seems to be no reason that a wrongff'ul officer should have
greater favour than a rightful, and that for no other reason but because he is a wrongful
one. 2 Hatok. c. 19, s. 23.
But it seemetli to be clear that no one is punishable as for felony for the voluntary
escape of a felon, but the person only who is actually guilty of it; and therefore that the
principal gaoler is only finable for a voluntary escape suffered by his deputy ; for that no
one shall suffer capitally for the crime of another. Jd. s. 27.
The Mutiny Act in general enacts. That if any offender, under sentence of death by
court martial, shall obtain a conditional pardon, (viz. on transportation,) all the laws in
force touching the escape of felons under sentence of death shall apply to such offender,
and to all persons aiding, abetting, or assisting in any escape, or intended escape of any
such offender, or contriving any such escape, from the time when an order (for his trans-,
portation) shall be made by a justice or baron, and during all the proceedings had for-
the purposes mentioned in the act.
The 52 Geo. III. c. 156, provides against the aiding of the escape of prisoners of War.
The offence of aiding a prisoner of war to escape is not complete, if such prisoner is
acting in concert with those under whose charge he is merely to detect the defendant,
who was supposed to have assisted in the escape of other prisoners, and such prisoner
having no intention to escape. Rex v. Martin, Russ. Sf R. C. C. 196.
Aiding in attempting to Escape. — The mere aiding an attempt of persons confined to
make an escape, though no escape should ensue, is made highly penal by stat. 16 Geo. II.
c. 31, s. 1, which enacts, "that if any person shall assist any prisoner to attempt his
escape from any gaol, though no escape be actually made, if such prisoner were then
attainted or convicted of treason, or felony, (excepty petty larceny,) or lawfully com-
mitted to or detained in any gaol for treason, or felony, (except petty larceny,) ex-
pressed in the warrant of commitment or detainer, he shiill be guilty of felony, and
be transported for seven years: and if such prisoner were then convicted of, committed
to, or detained in a gaol for petty larceny, or any other crime, not being treason or
felony, expressed in the warrant of commitment or detainer, or was then in gaol upon
any process for debt, damages, costs, or sum of money, amounting to lOOZ. he shall be
guilty of a misdemeanor, and be liable to fine and iniprisonmeiit."
Sect. 3. " If any person shall assist any prisoner to attempt to escape froln any con-
stable, or other officer or person who shall have the lawful charge of him in order to
carry him to gaol, by virtue of a warrant of commitment for treason or felony, (except
petty larceny,) expressed on such warrant; or if any person shall assist any felon to
attempt his escape from on board any boat, sliip, or vessel, carrying felons for trans-
portation, or from the contractor for the transportation of such felons, or his agents, or
any other person to whom such felon shall have been lawfully delivered in order for
transportation, he shall be guilty of felony, and be transported for seven years." All
prosecutions on this act to be commenced within a year after the offence committed,' .
The stat. 16 Geo. II. c. 31, does not extend to cases where an actual escape is madej
but must be confined to cases of an atteinpt, without effecting the escape itself. Mr. J.
Buller, in delivering the opinion of the judges, (O. B. June, 1726,) observed, "The
statute purports to be made for the further punishing of those persons who shall aid ancT
assist persons attempting to escape, and makes the offence felony; it creates anew
felony; but the offence of assisting a felon in making an actual escape was felony
before, and therefore does not seem to fall within the view or intention of the legis-
lature when they made this statute." Rex v. Tilley and others, O. B. April Sess. 1795;
2 Leach, 662 ; see also Rex v. Burridge, 3 /'. Wms. 439 ; Rex v. Young and Chissell,
Winchester Lent Ass. 1801, coram Le lilanc, J.
It is a misdemeanor, iiidiotable at common law, to aid a person to escape from cus-
tody, though ho be confined under the remand of tho commissioners for the relief of
insolvent debtors, and not on any criminal charge. Reg. v. Allan, 5 Jar. 296.
• Delivering instruments is within the act, though the prisoner has been pardoned of
the offences of which he has been convicted, on condition of transportation. Rex v.
^haw, R. ^ R. C. C. 526. ' ■
The stat. 4 Geo. IV. c. 64, s. 43, enacts, that " if any person shall convey or cause to
be conveyed into any prison to which this act shnll extend, any mask, vizor, or other
disguise, or any instrument or arms proper to fiicilitatc tiie escape of any prisoners, and
the same shall deliver, or cause to be delivered, to any prisoner in such prison, or to any
other person there, for the use of any such prisoner, without the consent or privity of
HISTORIA PLACITORUM CORONA. 605
the keeper of such prison, every such person shall be deemed to have delivered such vizor
or disg^uise, instrument or arms, with intent to aid and assist such prisoner to escape or
attempt to escape; and if any person shall, by any means whatever, aid and assist any
prisoner to escape, or in attempting to escape from any prison, every person so offend,
ing-, whether an escape be actually tnade or not, shall be guilty of felony, and being
convicted tiiereof, shall be transported beyond the seas, for a term not exceeding four-
teen years." See Burn's Just. Tit. ^Escape,'' 29 Land. Ed. 1845.
In the several States of the United Slates, with but a few partial exceptions, severe
penalties are prescribed against both keeper and prisoner, in case of escape. At com-
mon law it is held that every liberty given to a prisoner not authorized by law is an
escape. Colby v. Sampson, 5 Mass. 310. 312.
It is not necessary to prove negligence in the defendant: the law implies it, (see post,
600.) but if the escape were not in fact negligent, if the defendant by force rescued him-
self, or were rescued by others, and the defendant made fresh pursuit after him, but
without effect: all tliis must be shown upon the part of the defendant. It is enough also
to prove that the warrant on which the prisoner was convicted was legal, it is not requi-
site for the prosecutor to prove that he actually committed the offence with which he
was charged. 2 Hawk. c. 28. s. 16.
On a charge against the prisoner for breach of prison the same principle obtains,
though if he can prove that no such offence was ever actually committed, or that he was
arrested and detained without any reasonable cause of suspicion against him, (see post,
610, 611,) or if he have been subsequently indicted for the offence and acquitted, this
will be a sufficient defence to the indictment for breach of prison.
A person confined in a jail, who attempts to escape by breaking of the prison, in con-
sequence of which a fellow prisoner, confined for felony, escapes, is guilty of an offence
within the New York act, and may be punished by imprisonment in the State prison.
T/ie People v. Rose, 12 Johnson, K, 339.
Aiding and assisting to escape from jail a person committed on suspicion of having
beet* accessary to the breaking the house of <S. with intent to commit felony, is not in-
dictable under a repealed statute of New York. Sess. 24, c. 58. s. 12, 13. 1 N. Y. Rev.
Laws, 411.) because the prisoner was not committed on any distinct and certain charge
of felony. The People v. Washburn, 10 Johns. R. 160.
Lying in wait near a jail, by agreement with the prisoner, and carrying him away,
is not an offence against the same statute, but it is a misdemeanor at common law. The
People V. Tompkins, 9 Johnson, R. 70. Whart. Am. Crim. L. 551.
CHAPTER LIII. [ 606 ]
CONCERNING RESCUES OF PRISONERS IN CUSTODY FOR FELONY.
Rescue of a person imprisoned for felony is also felony by the com-
mon law.
To make a rescue a felony, 1. It is necessary that the felon be in
ctisiodi/, or under arrest for felony, and therefore if A. hinder an
arrest, whereby the felon escapes, the township shall be amerced for
the escape, and ./?. shall be fined for the hindrance of his taking; but
it is not felony in A. because the felon was not taken. 3 E. 3. Co-
ron. 333. Slarnf. P. C. p. 31. a.
2. Again, to make a rescue felony, tlie party rescued must be under
custody /or felony or suspicion offeloni/, and it is all one, whether
he be in custody for that account by a private person, or by an officer
or warrant of a justice, for where the arrest of a felon is lawful, the
rescue of him is a felony.
It seems that it is necessary that he should have knowledge that
606 HISTORIA PLACITORUM CORONA.
the person is under arrest for felony, if he be in the custody of a pri-
vate person.
But if he be in the custody of an officer, as constable or sheriff,
there at his peril he is to take notice of it; and so it is if there be
felons in a prison, and ^d. not knowing of it, breaks the prison, and
lets out the prisoners, tho he knew not that there were felons there,
it is felony, and if traitors were there, it is treason. P. 16 Car. 1.
Croke p. 583. Bensfead^s case per omnesjtisticiarios.
A return of a rescue of a felon by the sheriff against ^. is not suf-
ficient to put him to answer for it as a felony, without indictment or
presentment, by the statute of 25 E. 3. cajj. 4. 1 H. 7. 6. a. per cu-
riarn, 2 ^. 3. 1 Coron. 149.
As in case of an escape, so in case of a rescue, if the party
[] 607 ]] rescued be imprisoned for felony, and be rescued before in-
dictment, the indictment must surmise a felony done as well
as an imprisonment for felony or suspicion thereof; but if the party
be indicted and taken by a Capias and rescued, then there needs
only a recital that lie was indicted prout, and taken and rescued.
But tho the rescuer may be indicted before the principal be con-
victed and attainted, yet he shall not be arraigned or tried before the
principal be attaint for the reason given, cap. 51.
The rescuer of a prisoner for felony, tho not within clergy, yet
shall have his clergy.
Vide plus capite proximo, for many things there said are applica-
ble to the case of a rescue.[lj
[1] Rescue is the forcibly and knowingly freeing' another from an arrest or imprison-
ment ; and it is generally the same otFence in the stranger so rescuing as it would have
been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one
apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misde-
meanor also. But here likewise, as upon voluntary escapes, the principal must first be
attainted or receive judgment before the rescuer can be punished : The State v. Cuth-
bert. Chart. R. I'S; 4 Steph. Com. 256; and for the same reasons; because, perhaps in
fact it may turn out that there has been no offence committed. See 4 Blac. Com. 131.
Rescous is an ancient French word, coining from rescourer, that is recuperare; to
recover; and signifies a forcible setting at liberty, against law, a person arrested by the
process or course of law. 1 Inst. 160.
Rescue is a common law felony, if the party rescued be a felon. Rex v. Haswell, R.
^ R. 458. It is a misdemeanor if the party rescued be guilty of a misdemeanor. See
a case of Rex v. Stakes, 5 C. Sf P. 14!S; 1 Russ. C. Sf M., by Greaves, 435. If the party
rescued be guilty of high treason, the rescuer would be guilty of high treason. 2 Hawk.
c. 21. s. 7.
It is said that the rescue of a prisoner in, any of the superior courts comraifted by the
justices, is a great misprison, for which the party and the prisoner, if assenting, will be
liable to be punished even by imprisonment for life, arid forfeiture of goods and chattels;
though no stroke or blow were given. 1 East, P. C. c. 8. s. 3; Rac. Ah. Rescue, (E).
A liindrancc of a person to be arrested, that has committed felony, is a misdemeanor,
but no felony. Hale's Sum. 1 16; 2 Hawk. c. 21. s. 7 ; R. Sf R. 458.
Altliough a prison breaker may be arraigned for that offence, before he be arraigned for
the crime for which he was imprisoned, yet he who rescues one imprisoned for felony,
cannot, according to the better opinion, be arraigned for such offence, as for a felony, till
the principal ofFender be attainted; but he may be immediately proceeded against fbr a
misprison, if the queen pleases. 2 Hawk. c. 2\. s. 7. Therefore, if the principal die be-
fore the ;ittaindcr, lie shall be fined and imprisoned. Hale's Sum. 116.
An indictment of rescous must set forth tiie nature and cause of the imprisonment,
HISTORIA PLACITORUM CORONA. 607
and the special circumstances of the fact in question. 2 Hawk. c. 21. s. 5. The word
recussit, or something equivalent to it, to show that the rescue was forcible, and ag-ainst
the will of the officer. Kex v. Burridge, 3 P. Wms. 483; 5 Burns^ Just. p. 121. tit.
"Rescue."
By I S( 2 Geo.lV. c. 88, entitled, "An Act to amend the Law of Rescue," sect. I.
rescuingf persons charged with felony, is punishable with seven years transportation, or
imprisonment for not less than one year, and not more than three years. And by sect.
II. assaultinor any lawful officer to prevent the apprehension or detainer of persons
charged with felony, is punisliable with two years imprisonment in addition to other
pains and penalties incurred. See 5 Geo. IV. c. 84. s. 22. This section is, however, re-
pealed by 9 Geo. IV. c. 31. as to punishment ,
An indictment for a rescue, must show that the person rescued was lawfully in cus-
tody, and set out the writ and warrant. 1 Stark. Cr. PI. 156; Archb. Crim. PI. 550.
10 Lond.Ed.
An indictment for a rescue from a constable, must state the charge made before the
magistrate, the warrant and its delivery to the constable, and that the party was in cus-
tody under the warrant. Archb. Cr. PI. 309. 551 ; Rex v. Osmer, 5 EnsVs Rep. 304.
By 9 Geo. IV. c. 4. § 13. entitled the Mutiny Act, persons under sentence of death by
court martial, having obtained a conditional pardon, escaping out of custody, and all par-
ties aiding such escape, are punishable as felons. Rex v. Stanley, R. Sf R. C. C. 432;
see Ryland's note, 4 Bl. Cum. 131. 21 Land. Ed.
CHAPTER LIV.
CONCERNING ESCAPES AND BREACH OF PRISON, BY THE PARTY
HIMSELF THAT IS IMPRISONED FOR FELONY.
At common law it was held, that if any imprisoned for a misde-
meanor, tho not felony, had broke the prison and escaped, it had
been felony. Bract. Lib. II. (a) Stamf. P. C. p. 30. b. 2 Co. Instit.
p. 589.{b)
Bnt by the statute of 1 E. 2. de frangentibus prisonam
the severity of the common law is moderated, viz. Nullus [ 608 ]
de castero, qui prisonam fregerit, snbeat judicium vitse vel
membrorum pro fractione prisonae tantum, nisi causa, pro qua captus
& imprisonatus fnerit, tale judicium requirit, si de ilia secundum le«
gem & consuetudinem terras fuerit convictus, licet temporibus prse-
teritis aliter fieri consuevit.[l]
(o) This should be Lib. III. Tract. 2. de Corona, cap.9.f. 124. a. In this place Bracton
carries the matter very far; for he says, tho the party were innocent, and had only con-
spired to escape, he was ultimo supplicio pvniendus.
(b) But this severity is complained of as an abuse, IMirror, cap. 5. § 1. and it was the
opinion of Billing, chief justice, and the rest of the judges, 1 //. 7. 6. a. that a rescue of
a felon was felony at common law, but not in the person himself, till the statute of 1 E. 2.
This lord Coke says must be intended, where others break the prison without his privity.
2 Inst. 589.
[1] Breach of prison by the offender himsdf, when committed for any cause, was
felony at the common law, ante p.. ^S8, or even conspiring to break it. But this severity
is mitigated by the slat, de frangentibus prisonam, 1 Ed. II. cited by Hale supra, which
enacts, tiiat no person shall have judgment of life or member for breaking prison, unless
committed for some capital offence. So that to break prison and escape, when lawfully
608 HISTORIA PLACITORUM CORONA.
Upon this statute, therefore, to make a felony by breach of prison
these things must concur: 1. The party must be in prison. 2. He
must be in prison for felony. 3. He must break that prison. Many
of these things have been discussed before. I shall resume and add
"what shall be necessary for the explication of this felony.
I. What is a prison, and who shall be said a person in prison.
If a man be imprisoned for felony in the prison of a franchise, and
breaks and escapes, this is a breaker of prison, and it is as to this
purpose the king's prison, (c) tho the franchise or profit be the lord's.
2 B. 3. 1 Coron. 149. Stamf. P. C. 31. a. 2 Co. Instit. 5S9.
So at common law when sanctuary was in use, if a felon had esr
caped to a church, and there had been watched by the vill where the
church is, and he had broken the church and escaped, this had been
a felony within this statute. Stamf. P. C. p. 30. b. 3 E. 3. Coron. 290.
Whether the breach of the prison of the ordinary by a clerk con-
vict or attaint before purgation had been felony, vide Stamf. P. C.
p. 31, 33. but that learning is now antiquated, because by the statute
of 18 Eliz. cap. 7. the prisoner is not now delivered to the ordinary;
and therefore I shall not farther examine it.
(c) Stamford in the place here mentioned thinks it is not the king's prison, and there-
fore at common law the breaking of it would not be felony; but by the statute of 1 E. 2.
it matters not whetiier it be the king's prison or no, for it speaks de prisona generally,
and not de prisona nostra; however, as it must be intended a legal prison, which cannot
be without a grant from the crown, our author's construction is very reasonable, that all
such prisons should be taken as to this purpose to be the king's prisons.
committed for any treason or felony, remains still felony as at common law; and to
break prison, whether it be the county gaol, the stocks, or other usual place of security,
when lawfully confined upon any other inferior charge, is still punishable as a high mis-
demeanor by fine and imprisonment. 4 Blac. Com. 130.
An actual breaking is the gist of this offence, and must be stated in the indictment.
It must also appear that the party was lawfully in prison, and for a crime involving
judgment of life or member; it is not enough to allege that he feloniously broke prison.
2 Inst. 591. 1 Russ. C. Sf M. 381.
If lawfully committed, the party breaking prison is within the statute, although he
may be innocent; as if committed by a magistrate upon strong suspicion. 2 Inst. 590
1 Russ. C. S( M. 378.
A person confined in a gaol by virtue of a void warrant, may lawfully liberate himself
by breaking the prison, using no more force tiian is necessary to accomplish this obj6ct;
nor is it a crime or misdemeanor in such person, that while his sole object was to libe'-
rate himself, other persons lawfully confined for atrocious crimes in tlie same room with
him, in consequence of such prison breach, made their escape. Tlte State v. Leach,
7 Conn. R. 752.
To constitute a felonious prison breach the party must be committed for a crime
which is capital at the time of the breaking. 1 Russ. C. 6f M. 370. Calebs case, Plowd.
401. A constructive breaking is not sufficient, tlicrefore, if a person goes out of prison
without obstruction, it is only a misdemeanor : post p. 611.
An actual intent to break is not necessary. Tho statute extends to a prison in law
as well as to a prison in fact. 2 Inst. 589.
Prison breach, or rescue, is a connnon law felony, if the prisoner breaking prison or
rescued is a convicted felon; and it is punishable at connnon law by imprisonment, and
under 19 Geo. III. c. 74, s. 4, by tlirce times whipping.
Throwing down loose bricks at the top of a prison-wall, placed there to impede
escape and give alarm, is prison breach, though they were thrown down by accident
Hex V. Haswdl, R. Sf R. C. C. 458.
HISTORIA PLACITORUM CORONA. 609
If a person be taken for felony, and put in the stocks and break it,
i\ns is a' breaking of prison, and felony within the law. Dt/. 99. a.
2 Co. Inst. 589. ^Stamf. P. C. p. 30 b.
' So it is if the constable or any other secure a felon in the house
of him that makes the arrest, or in the house of any other, and he
break it and escape, it is felony.
Yet farther, if ./^. arrest B. for felony or suspicion of felony, there
being de faclo a felony committed, and being in the hands of ./^. he
violently rescueth himself and escapeth, this is a breach of prison and
a felony, for so are the words of my lord Coke, 2 Instit. 5S9. " Nota,
He that is in the stocks, or under lawful arrest, is said to be in prison,
tho he be not infra carceris parietes.^' And Stamford ubi siiprft
p. 30. b. Et 77ota quant a ceo que chescun que est soubs arrest pour
felony est prisoner auxy bien hors de gaol come deins, issint que sil
soit iorsque in cippes in le haut street ou hors de cippes in le posses-
sion d' ascun, que lui aver arrest, & faite escape ceo est debrusenient
de prison in le prisoner, which must be intended, as it seems, of a
violent escape, viz. rescuing himself out of custody.
II. What shall be said a being in prison for such a cause, as re-
quires jfff//c/«w vilx vel menibroriim.
It seems it is intended only of capital offenses, as felony, and there-
fore if a man be committed for petit larciny,or homicide 5e (/^/en^en-
do, or per infortunium, and breaks prison, this is not felony, for the
principal offense non requirit tale judicium. 2 Co. Instit. 590.
But if the commitment expresses larciny above value or raan-
. slaughter, tho de facto it were but petit larciny, or per infortunium
.or se defendendo, and possibly would appear so upon the evidence,
yet this escape will be felony.
Touching my lord Coke's opinion of the form of the Mittimus^
that it must particularly express the nature of the felony, and must
have an apt conclusion, I have said enough before; I think it is suffi-
cient if it be generally for felony, although it want that regular con-
clusion {fi/i he be delivered by due course of common laiv); yet these
defaults will not excuse the breach of prison from felony: but possibly
if it express no cause, the case may be otherwise, because
the substance of the Mittimus must be recited in the indict- f 610 1
ment.
For it is very plain, that antiently there were more felons commit-
ted to the common gaol without Mittimus in writing than were with
it; such were all the commitments by constables, watchmen, and pri-
vate persons arresting for felony and bringing to the common gaol ;
and Mittimus's were not of so antient a date as justices of peace,
and they were not before 1 E. 3.{d) and yet breach of prison by
felons was felony even from 2 E. \. and not only from 1 E. 2.
It is therefore enough if the gaoler have a sufficient notification
of the nature of the offense, for which he was committed, and the
prisoner of the offense whereof he was arrested, and commonly they
know, their own guilt, if they are guilty, without much notification.
{d) See 1 £.3. cap. 16.
610 HISTORIA PLACITORUM CORONA.
And again, by what hath been said, breach of prison is not only
■where the felon is formally committed to gaol by a Mittirnus, but
if he be put in the stocks, kept in the constable's house, nay, under
the custody of him that makes the arrest, and he break prison,
it is a felony, tho in these cases there neither are nor can be Mitli-
mus's.
If ./?. arrest B. for suspicion of felony, and carry him to the com-
mon gaol, and there deliver him, as he may do, 13 E. 4. 9. a,
4 E. 3. cap. 10. and he break prison, if he be indicted upon it there
must be an averment in the indictment, that there was a felony com-
mitted, and ./?. having probable cause did suspect B. and arrested
him and committed him, and that he broke the prison, and this must
be all proved upon the evidence.
But if ^. be indicted or appealed and taken by Capias, and com-
mitted, and break prison, there needs no averment or proof that a
felony was done, but only that there was an indictment or appeal,
and a Capias thereupon, because all appears by matter of record.
2 Co. Instit. 590.
But a lawful commitment may be for suspicion of felony, and this
is within this statute; yet no person can be indicted barely
roil 3 of suspicion of felony, but of the felony itself. 43 E. 3.
Coron. 454. 44 Jlssiz. 12. 2 Co. Instit. 592.
If a felony be made by act of parliament subsequent to 1 E. 2.
and a person be committed for such a felony and break prison, yet
this is felony. 2 Co. Instit. 592.
III. What shall be said a breaking of prison by a person commit-
ted for felony to make a felony.
If the prison be fired by accident, and there be a necessity to break
prison to save his life, this excuseth the felony; but if the prison
were fired by the prisoner himself, or by his procurement, the break-'
ing to save his life is nevertheless felony, for it was a necessity of hi^
own creating. 2 Co. Listit. 590.
If the gaoler set open the prison doors, and the felon escape, this
may be a felony in the gaoler, but is no breach of prison to make
felony in the prisoner.
If A. be arrested or imprisoned for felony, and B. and others
without the consent o{ J3. rescue Ji. this is felony in the rescuers,
but not felony in */l. But if A. were of confederacy with B. to
do it, then it is felony in B. as a rescue, and in A. as a breach of
prison.
And so it is if B. had broke the prison doors, and they being
open, A. had gone away, this had been felony in B. but not felony
in A. unless it were done by his confederacy, or procurement, for %/2.
did not actually break prison. 2 Co. Instit. 589. 1 H. 7. 6. a.
IV. Touching the proceeding for felony by breach of prison.
A. is committed for felony, or suspicion thereof, and breaks prison,
he may be indicted, arraigned, convicted, and have judgment for the
escape, aliho the principal felony be not tried, and he may be not
HISTORIA PLACITORUM CORONA. 611
guilty of the felony; and so it differs from the case of a rescue or
escape before, and the reason is, because here it is the same person,
there they are divers, and therefore in the latter case the principal
felony shall be first tried. 2 Co. Instit. 592,
And yet I hold, that if .^. be indicted of felony and committed,
and then breaks prison, and then be arraigned of the prin-
cipal felony and found not guilty, now Ji. shall never be [ 612 ]
indicted for the breach of prison ; or if indicted for it before
the acquittal, and then he is acquitted of the principal felony, he may
plead that acquittal of the principal felony in bar to the indictment
for the felony for breach of prison.
And so it was pleaded by myself in the case of one Mrs. Samford,
who was severely prosecuted by the earl of Leicester, upon a sus-
picion that she had stolen his jewels; for tho while the principal
felony stood untried, it stood indifferent whether she were guilty of
the principal felony, or rather the breach of prison was a presump-
tion of the guilt of the principal offense, yet now it be cleared, that
she was not guilty of the felony, she is now in law as a person never
committed for felony, and so her breach of prison is no felony.
The felony of breach of prison is a felony within clergy, tho the
principal felony for which the party was convicted were out of
clergy, as robbery or murder.
CHAPTER LV.
OP PRINCIPALS AND ACCESSARIES IN FELONY, AND FIRST OF ACCES-
SARIES BEFORE THE FACT.
Having gone through the considerations of the offenses of treasons,
and also of felonies at the common law, it will be seasonable in this
place to consider of those different relations of principals and acces-
saries, whereof tho much hath occasionally been mentioned, yet I
shall now proceed to the discussion of this matter distinctly and apart,
and shall put together all the learning that occurs to me concerning
this matter.
In the highest capital offense, namely, high treason, there
are no accessaries neither before nor after, {ox all consenters, [ 613 ~\
aiders, abettors, and knowing receivers and comforters of
traitors, are all principals, as hath been said, 3 H. 7. 10. a. Stamf.
P. C. p. 40. a. Co. P. C. jK 20.
But yet as to the course of proceeding, it hath been and indeed
ought to be the course, that those who did actually commit the very
fact of treason, should be first tried before those that are principals
in the second degree, because otherwise this inconvenience might
follow, viz. that the principals in the second degree might be con-
victed, and yet the principals in the first degree may be acquitted.
613 HISTORIA PLACITORUM CORONA.
which would be absurd: vide SomerviWs case(a) before, cap. 22.
p. 23S.[1]
In cases that are criminal, but not capital, as in trespass, mayhem,
ox prsemunire, there are no accessaries, for all the accessaries before,
are in the same degree as principals, Slamf. Lib. I. cap. 48. Sf libros
ibi; and accessaries after, by receiving the offenders, cannot be in
law under any penalties as accessaries, unless the acts of parliament
(hat induce those penalties, do expressly extend to receivers or com-
forters, as some do. [2]
Note the word maintainers in the statute of 27 E. 3. cap. 1. and
16 i?. 2. cap. 5. denotes the maintainers of the oftense, and not (as it
seems) of the parties.
It remains, therefore, that the business of this title of principal and
accessary refers only to felonies, whether by the common law, or by
act of parliament.
As to felonies by act of parliament, regularly if an act of parliament
enact an offense to be felony, tho it mentions nothing of accessaries
before or after, yet virtually, and consequentially those that counsel
or command the offense are accessaries before, and those that know-
ingly receive the offender are accessaries after, as in the case of rape
made felony by the statute of fVestmijist. 2. cap. 34.(6) Stamf. P.
C. Lib. I. cap. 47. 11 H. 4. 14. in case of multiplication, Co.
[ 614 ] P. C. cap. 20. tho Dy. 88. makes it a qusere.
But if the act of parliament that makes the felony, in ex-
press terms comprehend accessaries before, and make no mention of
accessaries fz/^e/-, namely, receivers or comforters, there it seems there
can be no accessaries after, for the expression of procurers, counsel-
lers, abettors, all which import accessaries before, make it evident,
that the law makers did not intend to include accessaries after, which
is an offense of a lower degree than accessaries before, as the statute
of 8 ^. 6 cap. 12. for stealing of records, the statute of 33 H. 8. cap. 8.
for witchcraft, ^-c. Stamford's P. C. ubi supra.
It is true my lord Coke, P. C. cap. 19./;. 72,73. denies the opinion
of Stamford, and affirmS', that tho the statute of 8 H. 6. cap. 12.
(a) 1 And. 109. But it was ruled in that case, that upon that branch of treason, which
relates to tlie compassing the death of the king, there is no need that tlie principal in the
first degree, {viz. lie who undertook to do the act) should be first tried, for the movers or
procurers are guilty of compassing the death of the king, altho he that was procured
should never assent thereto.
(6) 2 Co. Instit. 434.
[1] A person is not constructively present at an overt act of treason, unless he be
aiding and abetting at the fact, or ready to do so if necessary. U. States v. Burr,
4 Cranch, 492.
[2] See Foster, 341 ; Hawk. P. C. h. 2. c. 290; 3 Inst. 21 ; Dalton, c. 161; Common.
wealth V. Gillespie, 7 S. Sf K. 4G9 ; U. S. v. Morrow, 4 Wash. C. C. R. 733 ; U. S. v.
Mills, 7 I'eters, 38; Ward v. The Slate, G Hill, 144; Commonwralth v. Macomher,
3 Mrtss. 3.56; Wlntaker v, Enrrlish, 1 Bay. 15; Commonwealth \. Barlow, 4: Mass. 4XQ;
State V. Arden, 1 Bay. 488; Comm. v. Knapp, 9 I'icU. 497; Chanet v. Parker, 1 Rep,
Con. Ct. 333. The crime of an accessary before the fact to murder is murder. People
V. Mather, 4 Wendell, 229; State v. Arden, 1 Bay, 488; State v. Westjield, I Bailetj,
132.
HISTORIA PLACITORUM CORONA. 614
mention only accessaries before^ yet virtually and consequentially
accessaries after are included, as well as in felonies at common law;
but he neither allegeth any reason or authority for that opinion, and
therefore the authorities being equal, the greater reason seems to be
with Stamford's opinion, Expressum facit cessare tacitiun, and no
weight can be laid upon the statute of 3 H. 7. cap. 2. for that in ex-
press terms makes accessaries before and after to stand as principals.
And upon the same reason it is, that many of these acts of parha-
ment mentioned before, cap. 22. p. 236. that make certain offenses,
their counsellers, abettors, and procurers, to be treason, do not es:tend
to make receivers guilty of treason, tho if the act had been general
that such an offense shall be treason, it had consequentially made
knowing receivers as well as abettors guilty of treason : vide Co. P.
C. cap. 64. p. 1 38.
Tho generally an act of parliament creating a felony renders con-
sequentially accessaries before and after within the same penalty, yet
the special penning of the act of parliament in such cases sometimes
varies the case.
The statute of 3 H. 7. cap. 2. for taking away maidens, S^c. makes
the offender, and the procuring and abetting, yea, and wittingly re-
ceiving also, to be all equally principal felonies, and excluded of clergy.
Again, the statute of 27 E/iz. cap. 2. makes the coming
in of a Jesuit treason, the receiving or relieving of him felony, [ 615 ]
the contributing of money to his relief a. prasmunire, so that
acts of parliament may diversify the offenses of accessary or principal
according to tlie various penning thereof, and so have done in many
cases.
And thus much as to accessaries to felonies made by act of par-
liament, which being general directions may be applicable almost to
all cases.
I come to consider of principals and accessaries in felony, and their
differences among themselves, and with relation to felonies at com-
mon law.
By what hath been formerly delivered, principals are in two kinds,
principals in the first degree, which actually commit the offense, prin-
cipals in the second degree, which are present, aiding, and abetting
of the fact to be done.[3]
[3] The presence need not be an actual standing within sight or hearing of the act; an
active co-operation in the crime at the time of its commission completes the felony. As if
several persons set out together or in small parties upon one common design, be it murder
or other felony, or for any other purpose unlawful in itself, and each takcth the part as.
signed him, some to commit the fact, others to watch at proper distances and stations to
prevent a surprise, or to favour, if need be, the escape of those who are more immediately
engaged. They are all, provided the fact be committed, in the eye of the law, present at
it; for it was a common cause with them, each man operated in his station at one and
the same instant towards the same common end, and the part each man took tended to
give countenance, encouragement, and protection to the whole gang, and to insure the
success of their common enterprise. Foster, 350.
In case of stealing in a shop, if several are acting in concert, some in the shop and
some out, and the property is stolen by one of those in the shop, those who are on the
outside are equally guilty as principals in the offence of stealing in a shop. Rex v. Go.
gerleij, Russ. Sf R. C. C. 343 ; and see Rex v. Owen, 1 Ry. S^ ^^C. C. 9G ; Rex v. Borth.
615 HISTORIA PLACITORUM CORONA.
So that regularly no man can be a principal in felony, unless he be
present, unless it can be in case of wilful poisoning, wherein he that
layeth or infuseth poison with intent to poison any person, and the
person intended, or any other take it in the absence of him that so
wiclc, 1 Dou^l. 207. So if one keeps guard while others commit the act, he is construe-
tively present, and liable as a principal. Slate v. Town, Wright's Ohio i?. 75. If several
act in concert to steal a man's goods, and he is induced by fraud to trust one of them in
presence of the others, with the possession of such goods, and another of tliem entices
him away, that the man who has the goods may carry them off, all are guilty of felony
as principals. Rex v. Standley, Russ. Sf R. C. C. 305. See State v. Coleman, 5 Porter, 32.
All persons aiding and abetting the personating a seaman are principals; the oifence is
not confined to tlie person only who personates the seaman. Rex v. Potts, Russ, S( R.
C. C. 353. So in simony, all are principals. Baker v. Rogers, Cro. Eliz. 789. •
If one encourages another to commit suicide, and is present abetting him while hedoes
so, such person is guilty of murder as a principal, and if two encourage each other to
murder themselves and one does so, the other being present, but the latter fail in the
attempt upon himself, he is a principal in the murder of the first; but if it be uncertain
■whether the deceased really killed himself, or whether he came to his death by accident
before the moment when he meant to destroy himself, it will not be murder in either.
Rex V. Dyson, Bvss. Sf R. C. C. 523; and see Rex v. Russell, Moody, C. C. 356; Reg. v.
Alison, 9 C. Sf P. 418. See Com. v. Bowen, 13 Mass. 359.
All those who assemble themselves together wiih an intent even to commit a trespass,
the execution whereof causes a felony to be committed; and continue together abetting
one another, till they have actually put their design into execution: and also all those
who are present when a felony is committed, and abet the doing of it, are principuls.
And where persons combine to stand by one another in a breach of the peace, with a
general resolution to resist all opposers ; and in the execution of their design, a murder
is committed, all the company are equally principals in the murder, though at the time
of the fact, some of them were at such a distance as to be out of view. Reg. v. Howell,
9 Car. Sf P. 437. See also Com. v. Daily, 4 Penn. L. J, 156. Co7n. v. Hare, 4 Penn.
L. J. 259.
To constilute the offender a principal, it is not necssary that he should be prelent
during the whole of the transaction, it is sufficient to show that he originally assented to
the felony, and was present aiding and abetting when the offence was consummated,
although he was not at the inception. As where the servants of A. feloniously removed
goods in A.^s warehouse, from one part of it to another, and B. several hours afterwards
assisted in removing the goods from the warehouse, he was held a principal, since it was
a continuing transaction. Rex v. Atwell, 2 East, P. C. 768. ,
If several combine to forge an instrument, and each executes by himself a distinct part
of the forgery, and they are not together when the instrument is completed, they are
nevertheless all guilty as principals. Rex v. Bingley, Russ. S( R. C. C, 446; sed vide
Rex v. Kelly, Russ. Sf R. C. C. 421 ; and id. 332. infra. As if A. counsel B, to make the
paper, C. to engrave the plate, and D. to fill up the names of a forged note, and they do
Bo, e;ich without knowing that the others are employed for that purpose. B. C. and D,
may be indicted for the forgery, and A. as an accessary. Rex v. Dale, Moody, C. C. 307.
For if several make distinct parts of a forged instrument, each is a principal, though he
do not know by whom the other parts are executed, and though il is finished by one alone
in tlie absence of the others. Rex v. Kirkwood, Moody, C. C. 304.
Persons not sufficiently near to give assistance, are not principals. Thus where
Brighton uttered a forged note at Portsmouth, the plan was concerted between him and
two others, to whom he was to return when he had passed the note, and divide the pro-
duce. The three had before been concerned in uttering another forged note, but at tho
time this note was uttering in Portsmouth, the other two stayed at Gosport. The jury
found all three guilty; but on a case reserved the judges were clear that as the other two
were not present, nor suiliciently near to assist, they could not be deemed principals, and
therefore they were recommended for a pardon. Rex v. Soares, Atkinson and Bughton,
2 East, P. C. 974; Russ. t^ li- C. C. 25. *'. C. and see R. v. Stewart and others, Russ.
Sf R. C. C. 3G3; Rex v. Badcock, and others, Russ. & R. C. C. 249; Rex v. Manners,
7 C. Sf P. 801.
Going towards a place where a felony is to be committed in order to assist in carrying
off the property, and assisting accordingly, will not make a man a principal if he were
HISTORIA PLACITORUM CORONA. 615
at such a distance at the time of the felonious taking as to be unable to assist in it. Rex y,
Kellij, Kuss. Sf R. C. C. 421.
Where H. and -S. broke open a warehouse, and stole thereout thirteen firkins of but-
ter, &c. whicli they carried along the street thirty yards, and then fetched the prisoner,
who was apprized of the robbery, and he assisted in carrying the property away, he was
held not a principal, the felony being complete before he interfered. Rex v. King, Russ.
^ R. C. C. 332. Rex v. McMakin, ib. 333. note.
If a wife, by her husband's order, but in his absence, knowingly utter a forged
order and certificate for prize money, the presumption of coercion at tlietirne of uttering
does not arise, as the husband was ab.-ent, and the wife may be convicted. Rex v. Morris,
Russ. i^ R. C. C. 270. It is not sufficient to make a person a principal in uttering a
forged note, that he came with the utterer to the town where it was uttered, went out
with him from the inn at which they had put up a little while before he uttered it, joined
him again in the street a short time after the uttering, and at some little distance from
tlie place of uttering, and ran away when the utterer was apprehended. Rex v. Davis,
Russ. S( R. C. C. 113; and see Rex v. Else, id. 142.
If the principal were insane when the act was committed, no one could be convicted
as aider or abettor. R'g. v. Taylor, 8 Car. Sf P. 616.
The offender must also be participating in the felonious design, or at least the offence
must be within the compass of tlie original intention. Rex v. Plumer, Kel. 109, 117.
The act must also be the result of tlie confederacy, and if several are out for the purpose
of committing a felony, and upon an alarm run different ways, and one of them maim a
pursuer to avoid being taken, the others are not to be considered principals in such act.
Rex v. White, Russ. Sf R. C. C. 99. And in order to render persons liable as principals
in the second degree, the killing or other act must be in pursuance of some unlawful
purpose not collateral to it. 1 East, P. C. 258. Fost. 354, 355,
Thus where a number of persons comijine to seize with force and violence a vessel,
and run away with her, and, if necessary, to kill any person who should oppose them in
the design, and murder ensues, all concerned are principals in such murder. 1 Gallison,
C. C. R. 624. And where there is combined resistance to officers, or a combined effort to
cause tumults and affrays, or to commit felony, and death takes place, all are principals.
Commonwealth v. Daily, 4 Penn. Law J. 156. Commonwealth v. Hare, 4 Penn. Law J. 259.
If A. is charged with the offence, and B. is charged with aiding and abetting hini, it
is essential to make out the charge as to 6. that B. should have been aware of yl.'s inten-
tion to commit murder. Reg. v. Cruise, 8 C. Sf P. 541.
But all persons present at a prize-fight, having gone thither for the purpose of seeing
the prize-fighters strike each other, were principals on the breach of the peace. Rex v.
Ferkius, 4 Car. Sf P. 537. Rex v. Murphy, 6 C. Sf P.IO. Rex v. Young, 8 C. Sf P. 645.
The indictment against principals in the second degree may in general charge all the
parties as principals in the first degree, or as being present aiding and abetting. Fost.
351. ^ Hawk. c. 23. s. 76. Rex v. Young, 3 T. R. 105. Rex v. Towle, Ritss. Sf R.
314. Reg. V. Crisham, 1 C. «Sc Mar. 187. But there are exceptions to this rule as to
the structure of indictments under particular statutes which make the punishment dit
ferent, and it is best not to charge all the parties as principals in the first degree, but to
charge the principals in the second degree specially as aiders and abetters when there is
any doubt as to the evidence to prove them all equally guilty; for if one were altogether
innocent, having repented of his purpose, and left tiie ottiers before the felony, and it is
uncertain which is guilty, both roust be acquitted. 1 Leach, 387.
Where a prisoner was convicted upon an indictment which charged him with a rape
as a principal in the first count, and as an aider and abettor in the second, it was holden
that the conviction upon the first count was good. Rex v. Folkes, itoody, C. C. 354.
A. B. and C. were indicted for murder in the first count as principals in the first
degree, in the second count A. was indicted as principal, and B. and C. as principals ia
the second degree; the first count was ignored as to B. and C. and a true bill foimd on
the second count against all, and it was held that B. and C. might be convicted on the
second count, though A. was acquitted. Reg. v. Phelps, 1 C. Sf Mar. 180.
All who are present aiding and abetting him who inflicts the mortal blow, in cases of
murder, are principals and criminals in the highest degree; but it is not every intermed-
dling in a quarrel or aflfray from which death ensues, that constitutes an aiding and abet-
ting to the murder. If, for instance, two men fight on a former grudge, and of settled
malice, and with intent to kill, of which the spectators are ignorant, and they, of a sud-
den, take sides with the combatants and encourage them by words, and deatli ensue, it
will not be murder in such persons. When there is a conibiriation to resist all oppositioa
in the commission of an unlawful act, in the execution of which death eusues, all are
615 HISTORIA PLACITORUM CORONA.
layeth it, yet he is a principal, and he that counselleth or abetteth
him so to do, is accessary before. Co. P. C. cap. 64. p. 138 [4]
Who shall be said present, aiding, and abetting in case of felony,
hath been sufficiently declared in cap. 34. in case of murder, in cap.
48. in case of burglary, in cap. 46. in case of robbery, and need not
again he-repeated.
Accessaries again are of two kinds, accessaries before the fact com-
mitted, and accessaries after.
An accessary before, is he, that being absent at the time of the
felony committed, doth yet procure, counsel, command, [5] or abet
another to commit a felony, and it is an offense greater than the acces-
sary after; and therefore in many cases clergy is taken away from
accessaries before, which yet is not taken away from accessaries
after, as in petit treason, murder, robbery, and wilful burning, by 4
Ǥ-'5 P. 4- M. cap. 4.[6]
guilty of murder. The fact, however, must appear to have been committed strictly in
prosecution of the purpose for which the party was assembled, and if one of the party of
his own head, turn aside to commit' a felony, foreign to tiie original design, his compa-
nions do not participate in his guilt. State v. King et al. 2 Rice^s S. C. Dig. 106. The
distinction between principals in the first and second degree, is a distinction without a
difference, and therefore it need not be made in the indictment. The words " then ancl
there," in the concluding part of a charge against one present abetting a murder, may
be rejected as surplusage, or referred to the act done, which caused the death, and not
to the time and place of the death. State v. Fley and Robhill, 2 Rice, S. C. Dig. 104.
In an indictment for murder, if several be charged as principals, one as principal per-
petrator, and the others as aiding and abetting, it is not material which of them be charged
as principals in the first degree, as having given the mortal blow; for the mortal injury
given by any one of those present, is in contemplation of law, the injury of each and
every of them. If the actual perpetrator of a murder should escape by flight or die,
those present abetting the commission of the crime, may be indicted as principals, and
though the indictment should state the mortal injury was committed by him who is ab-
sent or dead; yet, if it be substantially alleged that those who were indicted were present
at the perpetration of tiie crime, and did kill and murder the deceased, by the mortal in-
jury so done, by the actual perpetrator, it shall be sufficient. State v. Fley and Robhill,
2 Rice, S. C. Dig. 104. If sofne of the persons engaged in accomplishing a lawful pur-
pose commit a felony in presence of others of the party, but without their participation,
the latter are neither principals nor accessaries. U. States v. Jones, 3 Wash. C, C 223.
[4] 4 Bl. Com. 34. Rex v. Giles, Ry. S^ M. R. 166. Rex v. Palmer, 1 T. R. 96. Rex
1 Stewart, R. ^ R. 363. Foster, 349. R. v. Harley, A C. S^ F. 369. Rex v. Gorden,
1 Leach, 15. 1 East, F. C. 352.
[5] State V. Mann, 1 Haywood, N. C. Rep. 4. — meaning of the word "command'* as
here used.
[6] Lord Coke and Mr. Justice Foster considered the word command as compre-
hending all those who incite, procure, set on, or stir up any other to do the fict. 2 Fastis
P. C. 041. But there arc some diversities: As — 1. When the principal dotli not ac-
complish the fact altogether in tlie same sort as it was beforeliand agreed between hin^
and the accessary; and, therefore, if one commands another to lay hold upon a third
person, and he lays hold upon him and robs him, the person commanding is not acces-
sary to the robbery, for his comm:md might have been performed without any robbery.
Dalt. c. 161, J5. 36!) ; and see 1 Ch. C. L. 262.
But if the command had been to beat him, and the party commanded doth kill him,
or beat liim so that he dieth thereof, the person commanding shall be accessary to the
murder; for it is a hazard in beating a man that he may die tiicreof. Id. Sed query, if
this does not mean where the cominarul was to beat the other violently ? 1 East, P. C. 257.
2. He that commandetli or counselleth any evil or unlawful act to be done shall be ad-
judged accessary to all that shall ensue upon the same evil act, but not to any other dis-
tinct thing. As if one command another to steal a horse, and he stcalcth an ox ; or to
HISTORIA PLACITORUM CORONA. 616
-' Those offenses, which in the construction of law are sudden and
unpremeditated, cannot have any accessaries before, as kilHng a man
per infortunium, se defendendo, or manslaughter. And therefore if
Jl. be indicted of murder, and B. as accessary before, if the jury find
.^. guilty only of manslaughter, there shall be no inquiry of B. but
rob a man by the highway of his money, and he robs him in his house of his plate; or
to burn such an one's house, and he burns the house of another; these are other acts and
felonies than he commanded to be done, and therefore he shall not be adjudged acces-
sary to them. Id.
3. But if a person commit the same felony which another did command or counsel to
be done, though he doth it another time, or in another place, or in another sort than was
commanded or counselled, yet here such person commanding or counselling shall be ac-
cessary. As if he doth counsel to kill a man by poison, and he kills him with a dagger;
or to kill him by the highway, and he kills him in his house; or to kill him one day,
and he kills him on another day; in these and the like cases he shall be accessary to the
murder, {Id.) for the means used are immaterial, so that the criminal object be effected.
4. Those offences which in the construction of law are sudden and unpremeditated,
cannot have any accessaries before. As killing a man by misadventure in his own
defence, or manslaughter, for in such case there can be no procuring, counselling, com-
manding or abetting. Ante 450, fosl 616.
5. It seems to be generally agreed,, that he who barely conceals a felony which he
knows to be intended, is guilty only of a misprision of felony, and shall not be adjudged
an accessary, for this is not procuring, counselling, or abetting. 2 HawJc. c. 29, s. 23.
Thus, words that seem to imply mere permission, as if one informs another that he is
about to commit a felony, and the latter replies: "You may do your pleasure for me,"
this does not implicate him as an accessary, but it only fixes him with the guilt of a
misprision. Post 616 ; 2 Hawk. c. 29, s. 23-28.
6. Also, if a man counsel or command another to kill a person, and before he hath
killed him, he who counselled or commanded it, repents and countermands it, charging
him not to kill him, and yet after he doth kill him, here such person countermanding
shall not be adjudged accessary to the murder, for, generally, the law adjudges no man
accessary to a felony before the fact, but such as continue in that mind at the time that
the felony is done and executed. Dalt. c. 161, p. 369.
7. But if a person advise a woman to kill her child as soon as it shall be born, and
she kill it in pursuance of such advice; he is an accessary to the murder, though at the
time of the advice, the child not being born, no murder could be committed of it, for the
influence of the felonious advice continuing till the child was born, makes the adviser as
much a felon as if he had given his advice after the birth. 2 Hawk, c.29, s. 18.
8. If the crime solicited to be committed be not perpetrated, then the adviser may still
be indicted for a misdemeanor in having made such solicitation. Rex v. Higgens, 2 East, 5.
Accessaries before the fact are in general punishable in the same manner as princi-
pals, for they are frequently more deeply criminal than the principal. See Dalt. c. 161.
But there are several legislative provisions pointing out the punishment in different
offences. Thus, accessaries before the fact to murder, are punishable with death.
9 Geo. IV. c. 31 . s. 3. So are accessaries to administering poison, and attempts to drown,
suffocate, or strangle, and to maliciously shooting and stabbing with intent to murderer
maim, &c. 9 Geo. IV. c. 31. s. 11, 12. So are accessaries to administering poison to a
-woman to procure abortion, witii intent, &.c. 9 Geo. IV, c. 31, s. 13, and 7 Will. IV. and
I Vict. c. 85. s. 6. ante, 11. 13. Accessaries to administering poison to a woman not
quick with child, with intent, &c. are punishable as principals. (Id.) So are accessaries
to the forcible abduction of women for lucre. 9 Geo. IV. c. 31. s. 19. So are accessa-
ries io child. stealing. 9 C^eo. IV. c. 31. s. 21. So are accessaries to bigamy. 9 Geo.
IV. c. 31. s. 22. And accessaries to any felony punishable under stat. 9. Geo. IV. c. 31,
for whom no punishment is otherwise provided, may be transported for not more than
fourteen nor less than seven years, or imprisoned with or without hard labor not exceed-
ing three years. 9 Geo. IV. c. 31. s. 31. See Arch. C. L. by Jervis, 9 ed. 689.
Accessaries before the fact to felonies within the statutes 7 & 8 Geo. IV. c.29. s. 30.
II Geo. IV. S( 1 Will. IV. c. 66; 2 Will. IV. c. 34; 7 Will. IV. Sf I Vict. c. 85. s. 7;
C.86. s. 6; c. 87. s. 9; c. 88. s. 4; c. 89. s. 11 ; and also c. 36. s. 35. as to offences against
the post office, and 4 Sf 5 Vict. c. 56. s. 2. respectively, are punishable with death or
otherwise in the same manner as principals in the first degree.
616 HISTORIA PLACITORUM CORONA.
he shall be forthwith discharged, because bare homicide is always
sudden: for if it were premeditated, it had been murder, and not
barely homicide, Bibilh'scase,{c) but there may be an accessary after.
Again, the exility of the offense, tho it be felony, yet because it is
not capital, excludeth accessaries before or after, and therefore in
petit larciny there can be no accessary, Jlnne Lassington's case,
P. 42 Eliz. B. R.{d) and this is also the reason why there can be no
accessary neither before nor after in manslaughter per infortunium
or se defendendo, because there is no judgment of death in that case.
That which makes an accessary before is command, counsel, abet-
ment, or procurement by one to another to commit a felony, when
the commander or counseller is absent at the time of the felony com-
mitted, for if he be present he is principal.
And therefore words that sound in bare permission, make not an
accessary, as if A. says he will kill J. S. and B. says you may do
your pleasure for me, this makes not B. accessary. 21 H. 7. 36, 37
Crompt. 41. ^.[7]
\i Ji. hire B. to mingle or lay poison for C. B. doth it according-
ly, and C. is poisoned, B. tho absent, is principal, A. is accessary ;
but if ./^. were present at the mingling or laying of the poison, tho
both were absent at the taking of it, yet both are principals, for they
are both equally acting in the poisoning.
But if ^. buy the materials of the poison, knowing and consent-
ing to the design, and deliver them to B. to mingle and apply it, or
lay it in the absence of tM. here it seems Ji, is only accessary before:
quod vide Co. P. C. cap. 1. p. 50. Frankli)i\s case.(e)
If A. command or counsel B. to commit felony of one kind, and
B. commits a felony of another kind, A. is not accessary, as
r 617 2 if «^- command B. to steal a plate, and B. commits burglary
to steal the plate, t/?. is accessary to the theft, but not to the
burglary. Co. P. C. cap. l.p. 51.
If A. commands B. to take C. and B. takes C. and robs him, t/?, is
not accessary to the robbery.
But if *d. commands B. to beat C. and B. beats C. so that he dies, ./?.
is accessary, because it may be a probable consequence of his beat-
ing, 3 E. 3. Coron. 314. Stamf P. C. Lib. I. cap. 45.foL 41. a. the
like it is if he command B. to rob him, and in robbing him B. kills him,
t^. is accessary to the murder. Plowd. Com. 475. Crompt. 43. 6.[8]
A. commands B. to burn the house of C. B. kills, robs, or steals
from C. A. is not accessary, for it is an ofttinse of another kind; so if
A. commands B. to steal the horse of C and he steals his cow, A. is
not accessary. Plowd. Com. 475. Saunder^s case.
(c) 4 Co. Rep. 43 b. (d) Cro. Eliz. 750. (c) State Tr. Vol. I. p. 329.
[7] The procurement need not be direct, it is sufficient if it be through i\\G agency of
anollier; and it may be by approbation or consent to an expressed felonious design.
Foster, 127. R. v. Somerset, 1!) Slate Trials, 804. R. v. Cooper, 5 C. i^- P. 535. 2 Hawk,
c. 21), s. J 1. I'eople v. Norton, 8 Cowen, 127, But bare concealment of an intention on
the part of anottier to commit a felony, will not make the person so concealing an acces-
sary. 2 Hawk. c. 29, s. 23. ■
[8] 4 Bl. Com. 37. R. v. Saunders, Plotbden, 475.
HISTORIA PLACITORUM CORONJi:. 617
iBut if ./^. command B. to steal generally from C. then he is acces-
sary to any kind of theft from C. tho it were done by robbery, for
that varies the offense only in degree.
t,^. commands B. to poison C B. kills him with a sword, yet ./?. is
accessary, for the substance of the thing commanded was the death,
of C. and the difi'ering in the manner of its execution from the com-
mand doth not excuse A. from being accessary. [9]
13ut if .y^. command B. to kill C. and B. by mistake kills D. or else
in striking at C kills D. but misseth C. »/l. is not accessary to the mur-
der of Z>. because it differs in the person. Co. P. C. cap. 7. p. 51.
Plowd. Com. 475. Saunder^ s case.
A. gets B. with child, and before the birth counsels B. to kill it,
the child is born, B. murders it, A. is accessary to the murder, yet
at the time of the counsel given the child was not in rerum nalurd.
2 Eliz. By. 186. a.
Jl. lets out a wild beast, or employs a madman to kill others,
whereby any is killed, A. is principal in this case, tho absent, because
the instrument cannot be a principal. Bait. cap. \QS.{f)
A. commands B. to kill C. but before the execution there-
of *^. repents, and countermands B. and yet B. proceeds in [ 618 ]
the execution thereof, A. is not accessary, for his consent
continues not, and he gave timely countermand to B. Co. P. C. cap. 7.
p. 51. Plowd. Com. 474, Sau7if/er's case; but if A. had repented, yet
if B. had not been actually countermanded before the fact committed,
»/^. had been accessary. [10]
(/) New Edit. p. 5^9.
[9] Foster, 369, 370. R. v. Cooper, 5 C. Sf P. 535.
[10] Among the statutary enactments on this subject in the United States, are the
following: collected in Wh(/rton''s American Criminal Law, 24-27.
United States. — Every person who shall, either upon the land or the seas, know-
ingly and wittingly aid and assist, procure, command, counsel or advise, any persoa
or persons, to do or commit any murder or robbery, or other piracy aforesaid, upon the
seas, which shall affect the life of such person, and such person or persons shall there-
upon do or commit such piracy or robbery, then all and every such person so as aforesaid
aidmg, assisting, procuring, commanding, counselling or advising the same, either upon
the land or the sea, shall be, and they are hereby declared, deemed and adjudged to be,
accessary to such piracies before the fact, and every such person, being thereof convicted,
shall suffer death. Act of April 30, 1790. s. 10.
That after any murder, felony, robbery, or other piracy whatsoever aforesaid, is or
shall be committed by any pirate or robber, every person who, knowing that such pirate
or robber has done or committed any such pirac}' or robbery, shall, on the land or at
sea, receive, entertain or conceal, any such pirate or robber, or receive or take into his
custody any ship, vessel, goods or chattels, which have been, by any such pirate or rob-
ber, piratically and feloniously taken, shall be, and are hereby declared, deemed and
adjudged, to be accessary to such piracy or robbery, after the fact; and on conviction
thereof, shall be imprisoned not exceeding three years, and fined not exceeding five hun-
dred dollars. Ibid. sect. 11.
Massachusetts. — Every person, who shall be aiding in the commission of any offence,
which shall be a felony, either at common law, or by any statute now made, or which
shall hereafter be made, or who shall be accessary thereto before the fact, by counselling,
hiring or otherwise procuring such felony to be committed, shall be punished in the same
manner, which is or which shall be prescribed for the punishment of the principal felon.
Rev. Stat. chap. 133. sect. 1.
Every person, who shall counsel, hire, or otherwise procure any offence to be commit-
VOL. I. — 53
618 HISTORIA PLACITORUM CORONiE.
ted, which shall be a felony, either at. common law, or by any statute now made, or
which siiall hereafter be made, may be indicted and convicted as an accessary before the
fact, either with the principal felon, or after tlie conviction of the principal felon, or he
may be indicted and convicted of a substantive felony, whether the principal felon shall
or shall not have been convicted, or shall or sliall not be amenable to justice, and in the
last mentioned case, may be punished in the same manner as if convicted of being an
accesary before the fact. Ibid. scct. 2.
It was said by the Supreme Court that stat. 1784, c. 65, (from which the above section
was drawn,) providing that if any person shall aid, assist, &c. any person to commit
murder, he shall be considered as an accessary before the fact, refers to a person not pre-
sent, aiding, &c. If the party be in such a situation as to be able to afford assistance to
the principal, although not literally present, he will be a principal. Com. v. Knapp,
9 I'ick. 496.
Any person, charged with the offence mentioned in the preceding section, may b®
indicted, tried and punished in the same court and the same county, where the principa
felon might be indicted and tried, although the offence of counselling, hiring, or pro-
curing the commission of such felony may have been committed on tlie high seas, or on
land, either within or without the limits of this state. Rev. Stat. chap. 133. sect. 3.
Every person, not standing in the relation of husband or wife, parent or grand-parent,
child or grand-child, brother or sister, by consanguinity or affinity, to the offender, whq,
after the commission of any felony, shall harbour, conceal, maintain, or assist any prin-
cipal felon, or accessary before the fact, or shall give such offender any other aid, know-
ing that he had committed a felony, or had been accessary thereto before the fact, with
intent that he shall avoid or escape from detection, arrest, trial or punishment, shall be
deemed accessary after the fact, and shall be punished by imprisonment in the state pri-
son, not more than seven years, or in the county jail, not more than three years, or by
fine not exceeding one thousand dollars. Ibid. sect. 4.
Every person, who shall become an accessary after the fact, to any felony either at
common law, or by any statute now made, or which shall hereafter be made, may be
indicted, convicted, and punished, whether the principal felon shall or shall not have been
previously convicted, or shall or shall not be amenable to justice, by any court having
jurisdiction to try the principal felon, and either in the county where such person shall
have become an accessary, or in the county where such principal felony shall have been
committed. Jbid. sect. 5.
New York. — Every person, who shall be a principal in the second degree, in the com-
mission of any felony, or who shall be an accessary to a murder, before the fact, and every
person who shall be an accessary to any felony, before the fact, shall, upon conviction, be
punished in the same manner herein prescribed, with respect to principals in the first de-
gree. 2 R. Stat. 698, sect. 6, 1st Edition.
Every person, who shall be convicted of having concealed any offender after the com-
mission of any felony, or of having given such offender any other aid, knowing that he
has committed a felony, with intent and in order that he may avoid, or escape from,
arrest or trial, or conviction, or punishment, and no others, shall be deemed an accessarji'
after thp fact, and upon conviction shall be punished by imprisonment in a state prison,
not exceeding five years, or in a county jail not exceeding one year, or by fine not ei-
ceeding five hundred dollars, or by both such fine and imprisonment. Ihid. sect. 7.
An indictment against an accessary to any felony may be found in the county where
the offence of such accessary shall have been committed, notwithstanding the principal
offence was committed in another county; and the like proceedings shall be had thereon
in all respects, as if the principal offence had been committed in the same county.
Ibid, 727, sect. 48.
An accessary, before or after the fact, may be indicted, tried, convicted and punished,
notwithstanding the principal felon may have been pardoned, or otherwise discharged,
after his conviction. Ibid, sect. 40.
Every person who shall be convicted of having been an accessary after the fact to any
kidnapping or confinement, herein before prohihited, shall be punished by imprisonment
in a state prison, not exceeding six years, or in a county jail not exceeding one year, or
by a fine not exceding five hundred dollars, or by ,both such fine and imprisonment
Ibid. GG5, sect. '31.
Pennsylvania. — Where any murder or felony hath been, or hereafter shall be com-
mitted in one county of this province, and one or more persons shall be accessary or
HIS^TORIA PLACITORUM CORONA. 618
accessaries to any such murder or felony in another coun'y, then an indictment found
or talsen against such accessary or accessaries, upon tlie circumstances of such matter,
before justices of the peace, or otiier justices or commissioners, to inquire of felonies in
the county where sucli offences of, accessary or accessaries, in any manner, have been
or shall be committed or done, shall be as good and effectual in law as if the said prin-
cipal offence had been committed or done within the same county, where the indictment
against such accessary hath been or shall be found. Act of 3[st May, 1118, sect. 22;
1 Smith, 405; It/i ed. Furdon, 1)35.
The justices of the said Supreme Court, or two of them, upon suit to them made,
shall write to the keepers of the records, where such principal is or shall hereafter be
attainted or convicted, to certify them whether such principal be attainted, convicted
or otherwise discharged of such principal felony; who, upon such writing to them or
any of them directed, shall make sufficient certificate in writing, under their seal or
seals, to the said justices, whether such principal be attainted, convicted, or otherwise
discharged or not. And after they who so have the custody of records, do certify that
such principal is attainted, convicted or otherwise discharged of such offence by the
law, then the justices of gaol delivery or of oyer and terminer shall proceed upon every
such accessary in I he county where he or they became accessary, in such manner and
form as if both the said principal offence and accessary had been committed and done
in the same county, wiiere the offence or accessary was or shall be committed or done.
And every such accessary and other offenders as above expressed, shall answer upon
their airaignments, and receive such trial, judgment, order and execution, and suffer
such forfeiture, pains and penalties, as is used in other cases of felony, and as the statute
made in the second and third years of the reign of king Edward the Sixth, (chap. 24,)
entitled, "An act for the trial of murders and felonies committed in several counties,"
doth direct in such cases; which statute shall be observed in this province, any law or
usage to the contrary notwithstanding. Ibid. sect. 23.
Pivery person convicted of bigamy, or being an accessary afler the fact, in any
felony, or of receiving stolen goods, knowing them to have been stolen, or of any other
offence not capital, for which, by the laws in force, before the act, entitled, "An act lo
amend the penal laws of this state," burning in the hand, cutting off the ears, nailing the
ear or ears to the pillory, placing in and upon the pillory, whipping or imprisonment for
life, is or may be inflicted, shall, instead of such parts of the punishment, be fined and
sentenced to undergo in the like manner, and be confined, kept to hard labour, fed and
clothed as is hereinafter directed, for any term not exceeding two years, which the
court before whom such conviction shall be, may and shall, in their discretion, think
adapted to the nature and heinousness of the offence. Act 5th April, 171^0; 2 Dallas,
801 ; 2 Smith, 531 ; 1th ed. Fur. 938, sect. 4.
Virginia. — An accessary to a murder or a felony committed, shall be examined by the
court of that county or corporation, and tried by the court in that district where he be-
came accessary, and shall answer upon his arraignment, and receive such judgments,
order, execution, pains and penalties as are used in other cases of murder and felony.
R. L. vol. i. 104.
If any be accused of an act done as principal, they that be accused as accessary shall
be attached also, and safely kept in custody until the principal be attainted or delivered.
R. L. vol. i. 126.
Persons knowingly harbouring horse-stealers, or receiving from them stolen horses,
are to be deemed and punished as accessaries. And if the principal felon cannot be
taken so as to be prosecuted and convicted of such offence, nevertheless the acces-
sary may be punished as for a misdemeanor, although the principal felon be not before
convicted of the felony, which shall exempt the ofi'cnder from being punished as ac-
cessary, if the principal offender shall afterwards be taken and convicted. li. L.
vol. i. 179.
If any principal offenders shall be convicted of any felony, or shall stand mute, or
shall peremptorily challenge above twenty persons returned to be of the jury, it shall
be lawful to proceed against any accessary either before or after the fact, in the same
manner as if the principal felon had been attainted thereof, notwithstanding such prin-
cipal shall be admitted to the benefit of his clergy, pardoned or otherwise delivered before
his attainder; such accessary to suffer the same punishment as the principal, if he had
been attainted. R. L. vol, i. p. 20G.
618 HISTORIA PLACITORUM CORONiE.
CHAPTER LVI.
OP ACCESSARIES AFTER THE FACT.
This kind of accessary after the fact is, where a person knowing the
felony to be committed by another, receives, relieves, comforts, or
assists the felon. [1] .
This, as hath been siaid, .holds place only in felonies, and in those
felonies, where by the law judgment of death regularly ought to ensue,
and therefore there is no accessary in petit larciny, homicide joer in-
fortunium, or homicide se defendendo. 15 E. 3. Coron. 116.
I shall consider, 1. What shall not be a receiving or relieving to
make an accessary after; and 2. What shall be such a receiving or
relieving to make an accessary after.
If A. knows that B. hath committed a felony, but doth not disco-
ver it, this doth not make ./^. an accessary after, but it is misprision
of felony, for which Ji. may be indicted, and upon his conviction fined
and imprisoned.
If eA?. sees B. commit a felony, but consents not, nor yet takes care
to apprehend him, or to levy hue and cry after him; or upon hue and
cry levied doth not pursue him, this is a neglect punishable by fine
and imprisonment, but it doth not make ji. an accessary after. S E.
2. Coron. 395. 3 E. 3. Coron. 293. Stamf. P. C. Lib. I.
[ 619 ] cap, 45. f 40. b. 14. H. 7. 31. b. and the contrary opinion of
some old books in this case is therefore rejected.
If B. commit a felony, and come to the house of td. before he be
arrested, and A. suff'er him to escape without arrest, knowing him
to have committed a felony, this doth not make »^. accessary; but if
he takes money of B. to suffer him to escape, this makes him acces-
sary, 9 H. 4. 1. and so it is if J2. shut the fore door of his house,
whereby the pursuers are deceived, and the felon hath opportunity
[1] Generally any assistance whatsoever given to one known to be a felon, in order to hin-
der his being approliended or tried, or suffering the punishment to which he is condemned,
is sufficient to bring a man within tiiis description, and makes him accessary to the
felony: as where one assists him with a horse to ride away with, or with money or vic-
tuals to support him in his escape. 2 Hawk. c. 29. s. 26. Also, it seems to be settled that
whosoever rescues a felon from an arrest for the felony, or voluntarily suffers him to
escape, is an accessary to the felony. 2 Hawk, c, 29. s. 27. It seems agreed, says Haw-
kiiis, that the law hath such a regard to that duty, love and tenderness which a wife
owes to her husband, as not to make her an accessary to felony by any receipt given to
her husband. Yet, if she be any way guilty of procuring her husband to commit it, it
seems to make her an accessary before the fact, in tlie same manner as if she had been
sole. Also, it seems agreed that no other relation besides tliat of a wife to her husband,
will exempt the receiver of a felon from being an accessary to the felony; from whence
it follows, that if a master receive a servant or a servant a master, or a brother a brother,
or even a husband a wife, they arc accessaries in the same manner as if they liad been
mere strangers to one another. 2 IJawk. c. 29. s. 3 [.
Where goods are feloniously taken by a servant in his master's absence, and the mas-
ter afterwards assists in secreting theni, he is an accessary only, though he directed the
original taking. Norton v. People, 8 Co/Oj. 137.
HISTORIA PLACITORUM CORONA. 619
to escape, this makes A. accessary; for here is not a bare omission,
but an act done by A. to accommodate his escape, 8 E. 2. Coron. 427.
*/i. hath his goods stolen by B. \( */9. receives his goods again sim-
ply without any contract to favour him in his prosecution, or to
forbear prosecution, this is lawful; but if he receives them upoa
agreement not to prosecute, or to prosecute faintly, this is theft-bote,
punishable by imprisonment and ransom, («) but yet it makes not t'?.
an accessary 1 42 Assiz. 5. b. 3 E. 3. Coron. 353. Slamf. P. C.f. 40.
a. but if he take money of B. to favour him, whereby he escapes,
this makes him accessary. Dalt. 263.{b) Crompt. 41. b.
t/i. hath his goods stolen by B. who sells them to C. upon a just
value, tho C. know them to be stolen, this makes not C. accessary,
unless he receive the felon. Da/L cap. 108./?. 288. (c)
But by some opinions, if he buy them at an under value, it makes
him accessary, per Crompt. 43. b. and Sir Nlch. Hyde, Dalt. iihi
supra; but it seems this makes not an accessary, for if there be any
odds, lie that gives more, benefits the felon more than him that gives
less than the value, but it may be a misdemeanor punishable by fine
and imprisonment, and the buying at an under value is a presumptive
evidence, that he knew they were stole, but makes him not accessary.
If Ji. hath his goods stolen by B. and C. knowing they were
stolen, receives them, this simply of itself makes not an accessary,
and therefore it hath been often ruled, (^) that to say, J. S. hath re-
ceived stolen goods knoiving them to be stolen, is not ac-
tionable, because it imports not felony, but only a trespass ["620 ~\
or misdemeanor, punishable by fine and imprisonment, (e)
for the indictment of an accessary after, is that he received and
maintained the thief, not the goods.{f)[2]
(a) Vide antea, p. 546. Sf notas ibid. (6) New Edit. p. 531.
(c) New Edit. ibid. (d) Dawsori's case, Yelv. 4.
(e) By 3 & 4 W. ^ M. cap. 9. "Receivers of stolen goods, knowing them to be stolen,
are to be deemed accessaries after the fact, and suffer as such;" but because these re-
ceivers often concealed the principal felons, and thereby escaped being punished as acces-
saries; therefore by 1 Ann. cap. 9. "Whosoever shall buy or receive stolen goods know-
ing them to be stolen, may be prosecuted for a misdemeanor, and punished by fine and
imprisonment, though the principal felon be not convicted;" and this shall exempt them
from being punished as accessaries, if the principal shall afterwards be convicted.
(/) But by 5 Ann. cap. 31. " If any person shall receive or buy knowingly any stolen
goods, or knowingly harbour or conceal any felon, lie shall be taken as accessary to the
felon, and shall suffer as a felon:" this statute does not take away the benefit of clergy;
but by 4 Geo. I. cap. 11. such person may be transported for fourteen years.
[2] The 7 & 8 Geo. IV. c. 29. is novy the only statute in force, affecting receivers of
stolen goods in general. All the statutes prior to that statute are repealed, and the only
other acts in force on this offence are the 2 Geo. III. c. 28. relating to receiving stoleo
goods, &.C. on the river Thames^ and the 1 & 2 Geo. ly. c. 75. relating to anchors, cables,
shipping, &c.
Where two receivers are charged in the same indictment with separate and distinct
acts of receiving, it is too late after verdict, to object that they should have been indicted
separately. Reg. v. Hays, 2 M. Sf Rob. 156. Where a person jinowing goods to have been
stolen, directs his servant to receive them, and the servant also knowing the?n to be
stolen, does so, they are jointly indictable. Reg. v. Parr, 2 M. Sf Rob. 346. Three per-
sons were charged with a larceny, and two others as accessaries, in separately receiving
portions of the stolen goods. The indictment also contained two other counts, one of
620 mSTORIA PLACITORUM CORONiE.
But yet it seems to me, that if B. had come himself to C. and
delivered him the goods to keep for him, C. knowing that they were
stolen, and that B. stole them, or if C. receives the goods to facilitate
the escape of B. or if C. knowingly receives them upon agreement
to furnish B. with supplies out of them, and accordingly supplies
him, this makes C. accessary ;(_ij-) and with this seems to agree the
preamble of the statute of 2 <§• 3 E. 6. cap. 24. Crompt. 41. b. for it
is relieving and comforting.
But the bare receiving of stolen goods, knowing them to be stolen,
makes not an accessary; for he may receive them to keep for the
true owner, or till they are recovered or restored by law; and so it
seems are the books to be intended of 27 Assiz. 69. 25 E. 3. 39., (A)
9 H. 4. 1. a.
If a felon be in prison, he that relieves him with necessary meat,
drink, or clothes for the sustentation of life, is not accessary.
So if he be bailed out till the next, sessions, 4'C. it is law-
[^ 621 ] ful to relieve and maintain him, for he is quodammodo in
custody, and is under a certainty of coming to his trial.
Crompt. 42. b. Ball. p. 2S6.{i)
And therefore it is not treason thus to relieve a traitor, while he is
in custody or under bail, and therefore the statute of 27 E/is. cap. 2.
that makes it felony to relieve a Jesuit, hath yet this qualification,
being at liberty and out of hold.
But if a felon be in gaol, for a man to convey instruments to him
{g) But because this was difficult to prove, the confederates of snch thiev^es frequently
disposing- of suck goods to the owners for a reward, under the notion of helping them
again to their stolen goods, it is provided by 4 Geo. I. cap. 11. "That whosoever shall
take a reward under tiie pretence of helping any one to stolen goods, shall suffer as a
felon, as if he himself had stolen the said goods, unless he cause such felon to be appre-
hended and brought to trial, and give evidence against him;" upon this clause the famous
Jonathan Wild was convicted and executed. 10 Geo. 1. See statute 6 Geo. 1. ch. 23.
for pretending to help one to stolen goods. Receivers of linen goods stolen from the
bleaching grounds, are by the statute 18 Geo. II. declared felons, without benefit of clergy.
{h) In the last edition of the year-books, which is in this place inispaged, it is 25 E.
3. 82. b.
(») Neio Edit. p. 530.
them charging each of the receivers separately with a substantive felony, in separately
receiving a portion of the stolen goods. The principals were acquitted, but the receivers
were convicted on tlie 'last two counts of tlie indictment. Reg. v. Pulham, 9 Car. Sf
P. 280. A lad stole a brass weight from his master, and after it had been taken from
him in his master's presence, it was restored to him again with his master's consent, in
order that he might sell it to a man, to whom he had been in the luibit of selling similar
articles, which he had stolen before. The lad did sell it to the man, and the man being
indicted for receiving it of an evil disposed person, well knowing it to have been stolen,
was convicted, and sentenced to be transported for seven years. Peg. v. Lyons. I C. Sf
Mar. 217. Where six .£100 notes were stolen, and the ])arty was indicted for receiving
tlicm, it appeared tliat the notes had been changed by tiic thief for £20 notes, which
latter notes had been received by the accused ; it was held, that he could not be convicted
on tlie indictment, as he did not receive the notes which were stolen. Ilex v. Wulkeley,
4 C. c^- P. 132.
A person may be indicted for receiving stolen property, if it remain the same in sub-
stance, though the name be changed, and therefore a principal may be indicted for steal-
ing'a live sheep, and tiie accessary with receiving twenty pounds of mutton. R'-x v.
Cowell, 2 East, P. C. 781 ; and sec R. v. Puckering, R. c^ M. C. C. 242.
HISTORIA PLACITOROI CORONA. 621
to break prison to make an escape, or to bribe tbe gaoler to let him.
escape makes the party an accessary, for tho common humanity
allows every man to aflord them necessary relief, yet common jus-
tice prohibits all men unlawful attempts to cause their escapes.
If A. speak or write in favour of a prisoner for his favour and
deliverance, this makes him not an accessary. 26 Assiz. 47.[3]
To instruct a felon to read thereby to save him by his clergy makes
not an accessary. M. 7 R. 2.,{k) Co. P. C. cap. 64. p. 139.
If A. be cominitted for felony, and B. an attorney advise the
friends of./?, to write to the witnesses not to appear against him, who
writes accordingly, this makes neither B. nor the friends accessary,
but is a misdemeanor punishable by fine and imprisonment. Co. P.
C. iibi supra.
A feme covert cannot be an accessary for the receipt of her hus-
band, for she ought not to discover him.
But the husband may be an accessary for the receipt of his \vife.
Stamf. P. C. Lib. I. cap. \9.fol. 26. a.
If the wife alone, her husband being ignorant, do knowingly re-
ceive B. a felon, the wife is accessary and not the husband. \5 E. 2.
Coron. 383.
But if the husband and wife both receive a felon knowingly, it
shall be judged only the act of the husband, and the wife acquitted.
M. 37 E. 3^ Rot. 34. in dors. Rex Coram Rege.{l)
To make an accessary to felony there must be a felony f 622 *]
committed by him, to whom he is accessary.
i^. gives B. a mortal stroke, C. receives or relieves A. or helps him
to escape, and then B. dies, C, shall not be an accessary to the felony,
because when he received him no felony was done. [4]
(it) Rot. 30. Rex Cant.
{1} This was the case of Richard Day and Margery his wife, (vide supra p. 47.) wlio
bad been indicted before the sheriff of Lincoln pro receptamento felonum ; the indictment
was sent coram rege: Richard surrendered himself and alleged, that he had been tried
and acquitted on the said indictment before the justices of gaol-delivery at Lincoln, and
was admitted to bail ; after which the judge of gaol-delivery sent the record of Richard's
acquittal ; Margery the wife pleaded, tFiat she also had been tried and acquitted, and was
also bailed, but afterwards she not appearing, a Capias was awarded against her and her
bail: upon this her husband and one John Hode two of her bail came into court, Et pe-
tunt ipsos admitti adjinem cum domino rege occasione prcedictd faciendum, S^ admittun-
tur) sometime afterwards the said John Hode came into court and alleged, that he had
been unjustly fined, "Quia praedictum indictamcntum super prjedictam Margcriam fac-
tum minus sufficiens est, eo quod preedicta Mnrgeria tempore, quo ipsa dictos felones
receptasse seu eis consentire debuisset, fuit coopCrta praedicto Ricardo viro suo, fc adbuc
est &. omnino sub potestate sua [ejus], cui ipsa in nuUo contradicere potuit, and ex quo
non inseritur in indictamento prtedicto, quod ipsa aliquod malum fecit, nee eis consen-
tivit, seu ipsos felones receptavit ignorante viro suo, petit judicium, si ipsa vivente viro
Buo dc aliquo receptamento in prcesentia viri sui occasionari possit." The court took
time to consider of this plea, and in Michaelmas term, anno Ato gave the following judg-
ment. "Viso & diligenter examinato indictamento praedicto super prajfatam Margeriani
facto videtur curios, quod indictamentum ilhid minus sufficiens est ad ipsam inde ponere
responsuram. Idco cessit processus versus earn omnino. See Co. P. C. p. lOS.
[3] But advising witnesses not to appear, though it docs not make an accessary, is a
misdemeanor. Hale^s Sum. 219.
[4] 2 Hawk. c. 29, s. 35, 4 Bl. Com. 38. '
622 HISTORIA PLACITORUM CORONA.
But a man may be accessary to an accessary by the receiving of
him knowing him to be an accessary to felony. Slam/. P. C. cap. 46.
/ 43. b. 22 ^ssiz. 52. [5]
There can be no accessary in receipt of a felon, unless he know
him to have committed a felony: vide Stamford's P. C. 41. b.
But yet it hath been held, that if the party be attaint of felony by
outlawry or otherwise in the county of .^. if any one of that county
receive him, he is accessary, whether he had notice or not, because
he is a felon by matter of record, whereof all in the same county
ought to take notice. 12 E. 2. Coron. 317. Stamf. P. C. cap. 46.
fol. 41. b.
But it seems to me necessary to make an accessary after, that there
be notice, aUho the felon were attaint in the same county, for pre-
sumption shall not make men criminal, where the punishment is
capital.[6]
See antea, 612. ch. 55.
[5] 3 P. Wyns. 475; 2 Haick. c. 29, s. 1.
[6] But some particular evidence is necessary. Cotn. Dig. Justices, t. 2 Hawk. c. 29,
s. 33, c. 25, s. 67; R. v. Thompson, 2 Lev. 308; 3 P. Wins. 496.
• ■ ' > ' .11 . . .
The punishment of accessaries after the fact is at common law trivial, (hey being in
most cases allowed the benefit of clergy. Fast. 372. There are several legislative pro-
visions pointing out the punishment in different offences. Thus, in abduction, biga.
my, assaults, child stealing, rape, and unnatural crimes, the 9 Geo. IV. c. 31. s. 31.
provides, "that every accessary after the fact to any felony punishable under this
act, (except murder) shall be liable to be ilnprisoned with or without bard labour, in
the common gaol or house of correction, for any term not exceeding two years; and
every person who shall counsel, aid, or abet the commission of any misdemeanor punish-
able under this act, shall be liable to be indicted and punished as a principal offender."
In murder, 9 Geo. IV. c. 31. s. 3. "every accessary after the fact to murder, shall be
liable at the discretion of the court, to be transported beyond the seas for life, or to be
imprisoned, with or without hard labour, in the common gaol or house of correction, for
any term not exceeding four }'ears."
Accessaries after the fact to offences within the 7 «^ 8 Geo. IV. c. 29. c. 30; 11 Gio.
IV. & 1 Will. IV. c. 66; 2 Will. IV. c. 34; 7 Will. IV. & 1 Vict. c. 36; c. 85 ; c. 86;
c. ,87 ; c. 88, and c. 89, respectively, may be imprisoned not exceeding two years, with
or without liard labour, and with or without solitary confinemement, such confinement
not exceeding one month at any one time, nor three months in any one year. Where
accessaries after the fact are punishable as for a felony, but no specific punishment is
provided by the particular stutute, they may be transported for seven years, or impri-
soned, with or without hard labour, for the whole or any part of the imprisonment, and
with or without solitary confinement; (7 & 8 Geo. IV. c. 28. s. 9.) such confinement not
exceeding one month at any one time, nor three months in any one year; (7 Will. IV.
& 1 Vict. c. 90. s. 5,) and if a male, may be once, twice, or thrice publicly or privately
whipped, in addition to the imprisonment, if the court shall think fit. 7 &, 8 Geo. IV.
c. 28. s. 8.
HISTORIA PLACITORUM CORONA. 623
CHAPTER LVir.
CONCERNING THE ORDER OF PROCEEDING AGAINST ACCESSARIES.[1]
The accessary may be indicted in the same indictment with the
principal, and that is the best and most usual way; but he may be
indicted in another indictment, but then such indictment must con-
tain the certainty and kind of the principal felony.
If a man were accessary before or after in another county, than
where the principal felony was committed, at common law it was
dispunishable, but now by the statute of 2 (§• 3 E. 6, cap. 24. the
accessary is indictable in that county, where he was accessary, and
shall be tried there, as if the felony had been committed in the same
county; and the justices, before whom the accessary is, shall write
to the justices, <5'c. before whom the principal is attainted, for the
record of the attainder.
This writing is to be by writ in the king's name under the teste of
the justice so sending it. Dy. 253. b.
If the accessary be indicted either alone or together with the prin-
cipal, process of outlawry shall not go against the accessary till the
principal be attainted or outlawed, neither shall he be put to plead
till the principal appear, but shall be bailed till the principal appear;
vide Westm. 1. cup. 14.(«) [2]
(a) 2 Co. Instit. 183. This is now alterd by 1 Ann. cap. 9.
[1] See statutes 7 & 8 Geo. IV. c. 64, s. 9. On the construction of this statute, see
Rex V. Russell, Mood. C. C. 356; Recr. v. Leddington, 9 Car. 4- P. 79. This provi-
sion in this statute with respect to attaiuder, is substituted lor that of 1 Ann. St. 2. c. 9,
8. 1, which is repealed.
[2] Ry. V. Ashmell, 9 C. Sf P. 236; Whitehead v. The Stite, 4 Humphreys, 278. By
the common law an accessary cannot be put upon trial against his consent until the
principal is convicted. Hence if the principal be dead before conviction the accessary
cannot be tried. Commonwealth v. Phillips, 16 Mass. 423. The guilt of the principal
must be established before the accessary can be tried, 2 Burr''s Trial, 440. An acces-
sary to a felony committed by several, may be tried as accessary to those who have
been convicted ; but if tried as accessary to all, and some have not been proceeded
against, it is error. Stoops v. Commonwealth, 7 &'. S; R. 491. After conviction of an
accessary, it is not ground for arresting judgment that the indictment does not allege
that the principal had been convicted. Harty v. The State, 3 Blackf. 386.
By statute a receiver of stolen goods may be tried, though the principal is not con-
victed. State v. & L. 2 Tyler, 249; Commomvealth v. Andrews, 2 Mass. 14; Common-
wealth y. Frye, 1 Virg. Cases, 18; Butler v. State, 3 McCord, 384.
But in North Carolina he cannot be tried before the principal, except " when the latter
escapes and eludes the process of law." Slate v. Gross, 1 Murph. 270; State v. Goode,
1 Hawks, 463.
But conviction of a principal without judgment warrants the trial of the accessary.
Commonwealth v. Williamson, 2 Virg. Cases, 211.
A verdict that the defendant indicted as accessary to a murder is guilty, without
623 HISTORIA PLACITORUM CORONA.
The accessary shall not be constrained to answer to his indictment,
till the principal be tried, 9 E. 4. 48. a. but if he will wave that
benefit, and put himself upon his trial before *the principal be tried-
he may, and his acquittal or conviction upon such trial is good.
S/0771/. P. C. Lib. I. cap. 49. / 46. b.
But it seems necessary in such case to respite judgment till the
principal be convicted and attaint, for if the principal be after ac-
quited, that conviction of the accessary is annulled, and no
[624] judgment ought to be given against him; but if he be ac-
quitted of the accessary, that acquittal is good, and he shall
be discharged. 8 H. 5. 6. 6. Corow. 463.
If ^. B. and C. be indicted as principals, and D. is indicted as ac-
cessary to them all, D. shall not be arraigned till all the principals be
attaint or outlawed, for if Jl. and B. be tried, and acquit or attaint,
yet D. may be accessary to C and not to Jl. nor B. but if A. B.
and C. be indicted as principals, and D. indicted as accessary to A.
only, there if ./^. be attaint, tho B. and C. be not, yet D. shall be
arraigned. AQAssiz.2b. Coron.2l6. 7 H.4.36.b. S t am f.ubi supra.
stating whether accessary to the murder in the first or second degree, is erro-
neous, lb.
If A. is cliarged in tlie indictment as principal, and B, as accessary, and the jury
find B. to he the principal and A, tlie accessary, tiie indictment is sustained. Slate v.
Mairs, Coxe, 453.
The court may, in its discretion, permit an accessary to be tried separately from the
principal. State v. Yancey, 1 Const. Rep. 241.
If the principal in murder has absconded, and process of outlawry is seasonably com-
menced, but there is not time to finish it at the second term, the accessary, who lias
refused to be tried without the principal, aithou2"ii he has been two terms under indict-
ment, is not eutitled to be discharged on habeas corpus. Commonwealth v. Sheriffs
\&S. cy R. 304.
Whatever constitutes one as an accessary in a capital offence, makes him liable as
principal in a misdemeanor. State v. Westjield, 1 Baily, 132.
The record of the conviction of a slave as principal in a felony, is evidence against a ^
free man as accessary before tlie fact; so of the slave's confession of his own guilt as
principal; State v. Sims, 2 Baily, 29 ; State v. Cranky ib. 66.
The records of the principal's conviction must be produced on trial of tlie accessary,
unless they are tried together, or the latter has consented to be tried before the former,
or the former is dead or has been pardoned before trial. But if tiie indictment charge
the accessary with being present, aiding and abetting, the principal's guilt may be
proved by parol evidence, though the principal has been convicted. State v. Crank,
2 Baily, 66.
VVhcrc the principal and accessary are joined in an indictment and tried separately,^
tlie records of the principal's conviction is prima facie evidence of his guilt upon the
trial of the accessary, and as tlie burden of proof is on the accessary, he must show-
clearly that the principal ought not to have been convicted. Commonwealth v. Knapp,
10 Pick. 481.
But the accessary in such case is not restricted to proof of facts that were not shown
on the former trial, and wliich arc incompatible with the guilt of the principal. lb.
If an indictment allege a burglarious entry with intent to steal, and then and there
stealing, it is only the oficuce of burglary, and a count charging one as accessary to
" the offence aforesaid," is good. Sloops v. Coinmomoealth, 7 S. iSf R. 491.
In an indictment against an accessary before the fact in felony, it is not necessary to
set forth tiie conviction or execution of the principal. State v. Crank, 2 Baily, 6G ;
State V. Sims, ib. 29.
Where one was indicted as accessary to a murder committed by a slave, it was held
enfficient to describe the slave by his own name, without setting out that of his master.
State V. Crank, 2 Baily, C6. ■ j
HISTORIA PLACITORUM CORONA. - 624
Bat yet the court may if they please arraign the accessary in the
first case, (6) for if he be found accessary he shall have judgment,
but if acquitted of being accessary to A. yet that acquittal dischargcth
him not of being accessary to B. or C. and therefore when they come
in and plead and are attaint, D. may be arraigned de novo a.s acces-
sary to B. and C. Plowd. Com. 9S. b. Gittin^s case. So that it is in
the discretion of the court to arraign him or not before B. and C. be
attaint, tho it be the safer course to respite the arraignment of the ac-
cessary till B. and C. appear or are outlawed.
If is. be indicted or appealed as principal, and B. as accessary
before or after by the same indictment, and the principal plead in bar
or abatement, or autrefoits acquit, the accessary shall not be forced
to answer, till that plea be determined, for if it be found for A. the
accessary is discharged, if against ./?, yet he shall after plead over to
the felony, and may be acquitted. 9 H. 7. 19. b.
\i Jl. be indicted as principal, and B. as accessary, they may be
both arraigned together, and plead together, and put upon their trial
by the same jury, and the jury shall be charged to inquire first of the
principal, and if they find him not guilty, then to acquit the accessary;
but if they find him guilty, then to inquire of the accessary. Seig-
neur Sanchar's case,(c) 40 Assiz. 8. 7 H. 4. 36. ^.[3] Coke
super statute Westm. 1. cap. \A.{d) but in that case judg- [625 ]
ment must be first given of the principal, for if any thing
obstruct judgment, as clergy, a pardon, i^'C. the accessary is to be
discharged.
If./?, be attaint of murder upon an appeal, and then Jl. is indicted
of murder as principal, and B. as accessary, the principal pleads the
former attainder,^, shall not be put to answer as accessary, because
he is not attaint upon the same suit, and so it is if the attainder of t/^.
were first upon the appeal. 7 H. 4. 36. a. Stamf. P. C. 47. a. Coke
uhi supra.
If the principal be attainted and hath his clergy, or be pardoned
after attainder, the accessary shall be put to answer; but if the prin-
cipal be only convict and hath his clergy, or be pardoned, or stand
mute, or die in prison before judgment, or challenge above thirty-
six peremptorily, the accessary shall not be put to answer, for the
principal was never attainted, (e) and altho formerly there were diver-
sity of opinions in the books in these cases,(/) yet the law is now
{b) To make this consistent with what goes before, we must understand the former
passage to mean, that where he is indicted as accessary to all, he shall not be nrraigned
as accessary to them all till all be attaint or outlawed, and this, that the court may in
such case, if they please, arraign him only as accessary to him who is attaint, tho the
others do not appear.
(c) 9 Co. Rep. 119. a. (d) 2 Co. Inst. 184.
(e) It was for this reason, that Weston the principal actor in the murder of Sir Thomas
Overbury could not for a long while be prevailed with to plead, that so the earl and coun-
tess of Somerset, who were the movers and procurers mio'lit escape. See State Tr. Vol. I,
p. 314.
(/) See Coron. 51, 58.
[3] 9 Rep. 119. Foster's Rep. 361. S. C
625 HISTORIA PLACITORUM CORONiE.
settled as. above, (§•) 4 Co. Hep. 43, 44. Bihith's case and Syer^s case,
Coke super PVestm. 1. cap. 14.
If the principal be erroneously attaint, the accessary shall be put to
answer, and shall not take advantage of the error in that attainder,
2 R. 3. 21, 22. but the principal reversing the attainder, reverseth the
attainder of the accessary. IS E. 4. 9. b.
li Ji. be indicted as principal, and B. as accessary before or after,
and both be acquit, yet B. may be indicted as principal, and the for-
mer acquittal as accessary is no bar.[4] 4 E. 6. B. Coron. 186. ■
Knighl ley's case, CrompLf. 43. a.
But if ^^. be indicted as principal and acquitted, he shall
r 626 3 iio'^ be indicted as accessary before, and if he be, he may
plead his former acquittal in bar, for it is in substance the
same oflense, Stamf P. C. Lib. II. cap. 36.fol. 105. a. 2 E. 3. Co-
ron. 150 Si" 282. but the antient law was otherwise. 8 E. 2. Coron. 424.
But if he be indicted as principal and acquitted, he may yet be in-
dicted as accessary after, for they are oftenses of several natures.
27 ^ssiz. 10. S H. 5. Coron. 463. Stamf P. C. ubi supra.
And so it is if he be indicted as accessary before diU^ acquitted, yet
for the same reason he may be indicted as accessary after.\_5^
(g) But since our author wrote, it is settled quite otherwise by 1 Ann. cap. 9. for by
that statute, " If any principal offender shall be convicted of felony, stand mute, or chaK
lenge above twenty, it shall be lawful to proceed against the accessary, either before or
after the fact, in the same manner as if such principal felon had been attainted thereof,
notwithstanding such principal felon be admitted to his clergy, or otherwise delivered
before attainder; and every such accessary, if convicted, stand mute, SfC, shall suffer the
same punishment, as if such principal had been attainted.
[4] But Mr. Justice Foster observes upon this, that in the eye of the law the offences
of principal and accessary do specially differ; and if a person indicted as principal can-
not be convicted upon evidence tending barely to prove him to have been accessary before
the fact, which must needs be admitted, it doth not appear how an acquittal upon one
indictment can be a bar to a second, for an oftence specially different from it. Fast. 362.
And the distinction is also taken in Rex v. Wijifre'd Gordon, 1 EasVs P. C. 352. and
there it was held, by all the judges, that W. G. having been indicted as accessary before
the fact, and acquitted upon that indictment, might be indicted again as principal.
[5] Indictment of Accessary together with his Principal. — Where the parties are thus
joined in the same proceeding, the proper course is first to state the guilt of the principal
according to the facts, as if he alone had been concerned; and then in case of accessaries
before the fact, to aver " that C. D., lute of, &.c. {the procurer) before the committing
of the said felony and murder, {or burglary, as the case is,) in form aforesaid, to wit, on,
&c., with force and arms, &c., did maliciously and feloniously incite, move, procure, aid
and abet," (or counsel, hire, and command,) following the words of the statute, if the de-
fendant he made an accessary thereby, or else the efiect of such words, see Rex v. Gre.
vil, 1 And. VJ5; "the said A. B., {the principal felon) to do and commit the said felony
and murder, and in manner aforesaid, against the peace," &c.
And where a man is indicted as accessary after the fiict, together with his principal,
the original lelony is to be stated in the same way, and the conclusion must aver that the
accessary did receive, harbour, and maintain, &c., the principal felon, well knowing that
he had committed the felony. The averment of knowledge is indispensably requisite,
because without it the guilt does not manifestly appear. Com. Dig. Justices, t.; 2 Hawk.
c. 29. s. 33; c. 25. s. 67 ; R. v. Thompson, 2 L<v. 308.
A person may be indicted for receiving stolen property, if it remain the same sub-
stance, though the name be changed ; and therefore a principal may be indicted for steal-
ing of a live sheep, and the accessary with receiving twenty pounds of mutton. Rex v.
Crowell and Green, 2 East's I'. C. 781 ; R. v. Puckering, R. 6f M. C. C. 242.
la an indictment against the receiver of Btolen property, the property stated to have
HISTORIA PLACITORUM CORONiE. 626
been received should agree with that averred to be stolen ; but in Morris's case, Leach,
525, where the indictment charged the principal with stealing two bank notes, the pro-
perty of S. S., and charged the accessary with receiving the said notes, the property and
chattels of the said ^. S., it was holden, that the word " chattels" miglit he rejected as
surplusage.
It is not necessary to use the word " accessary" in the indictment, {Rex v, Burridge,
Plow. 477,) or to set forth the means by which the accessary before the fact incited the
principal to commit the felony, or the accessary after received or comforted him; for it
is periectly immaterial in what way the purpose of the one was effected, or tlie harbour,
ing of the other secured ; and as the means are frequently of a complicated nature, it
would lead to great inconvenience and perplexity if they were always to be described
upon the record. Co. Enlr. 56, 57; Rast. Entr. 48; 9 Co. 114; 2 Hawh. c. 29. s. 17.
If two are charged jointly with receiving stolen goods, a joint act of receiving must be
proved; a proof that one received in the absence of the other, and afterwards delivered to
liim, will not suffice. Successive receivers are all separate receivers, and all punishable.
Bex V. Messingham, R. Sf M. C. C. 257.
Indictment against the Accessary alone, after the conviction of the Principal. —It is not
necessary in this case to aver that the latter committed the felony, or on the trial to enter
into a detail of the evidence adduced against him; but it is not sufficient to recite with
certainty the record of the conviction, because the court will presume every thing on the
former occasion to have been rightly and properly transacted. Holmes v. Walsh, 7 T.
R. 465; Fost. 365.
It is sufficient in an indictment for felony against a receiver of stolen goods to state,
that the principal was "tried and duly convicted," without going on to show what judg-
ment was passed upon him, or how he was delivered. Hyman''s case, 2 Leach, 925.
Indictment against Accessary alone for a substantive felony or misdemeanor. — In this
case it is not, it seems, necessary to allege the original felony or misdemeanor with that
particularity as to time and place, as in an indictment against the defendant together
with the principal. See 1 Stark. C L. 168; R. v. Scott, 2 Easfs P. C. 781.
The indictment against a receiver of stolen goods, need not allege time and place to
the fact of the stealing, it is sufficient if they be alleged to the fact of the receipt. 2 East,
P. C. 780. In this indictment it is not necessary to aver that the principal has not been
convicted. R. v. Baxter, 5 T. R. 83.
An indictment is properly framed which states that the principal felon cast away and
destroyed a vessel, and that the accessary incited, moved, aided, counselled, hired, and
commanded him to do it; and the accessary may be convicted on an indictment so
framed, although the principal felon has not been tried, and does not appear to be amena-
ble to justice. R. v. Wallace, \ C. S^ M. 200. In other respects the indictment will
assimilate that against principal and accessary jointly.
If the principal be unknown, the indictment may state the offisnce to have been com-
mitted by "some person or persons to the jurors aforesaid unknown." Thus in the case
of John Thomas, the indictment was for receiving goods stolen by persons unknown,
which was objected to be insufficient, in not ascertaining the principal tliief, and that it
ought to appear to whom in particular the prisoner was accessary. This objection
being referred to the judges, they were unanimously of opinion that the indictment was
good, that the greater view of the statutes was to reach the receivers where the princi-
pal thieves could not easily be discovered. R. v. Thomas, 2 Easfs P. C. 781.
Where the principal is known, it seems proper to state it according to the truth; and
the common form of the indictnient is to state the fact of stealing the goods by tiie prin-
cipal and the receipt of them by the receiver, he then and there well knowing the said
goods and chattels to have been feloniously stolen, <fcc. R. v. Hymen, 2 Leach, 925. Or
an allegation that the goods were stolen " by a certain evil disposed person" is good, and '
without stating the name of the principal felon, or averring that he is unknown. R. v. Jer-
vis, 6 C. &,- P. 156. And this in tnany cases, may be the best mode of stating the offi'nce.
Where, in an indictment against an accessary to a felony, it was stated that the felony
was committed " by a person to the jurors unknown," and it appeared that the principal
felon was a witness before the grand jury, it was held that the indictment could not be
supported. R. v. Waker, 3 Comp. 264; Rex v. Casper, 9 C. S<; P. 289.
If a charge against an accessary be that the principal felony was committed by per-
sons unknown, it is no objection that the same grand jury have found a bill imputing
the principal felony to /. S. Thus in jR. v. J. Bush, the prisoner was tried before Mr.
Baron Garrow, at the Gloucester Summer Assizes, 1818, and was convicted and received
626 HISTORIA PLACITORUM CORONA.
sentence of transportation for fourteen years, but execution was stayed in order that the
opinion of the judges might be taken upon the Jiropriety of the conviction. The indict-
meni stated that " a certain person or persons to the jurors unknown," the dwelling-house
oi Hannah Wilmot, burglariously did break and enter and certain silver plate commonly
called a silver cream-jug lie of her goods did steal ; and timt Bush feloniously did receive
and have the same, he then and there well knowing the same to have been feloniously and
burglariously stolen, &c. Upon the trial it appeared that among the records of indictments
returned by the same grand jury, there was one charging one Henry Moreton as princi-
pal in the burglary, and the prisoner Bush as accessary after in receiving the cream jug.
Mrs. Wilmot proved tliat lier house had been broken but once, that she had lost only one
cream-jug, and that she had preferred two indictments to the grand jury. The counsel
for the prosecution had declined to proceed on the indictment against Moreton. Ludlow,
for the prisoner, objected that the allegation in the present indictment, that the person or
persons who committed the burglary were unknown to the jurors, is negatived by the
other record, and that the prisoner was entitled to be acquitted. This point was reserved
for the opinion of the judges, who in Michaelmas Term, 1818, held the conviction right,
being of opinion that the finding by the grand jury of the bill imputing the principal
felony to J. S. was no objection to the second indictment, although it stated the princi-
pal felony to have been committed by certain persons to the jurors aforesaid aninoicw.
R. V. Bush, R. ^ R. C. C. 372.
In a late case it was made a question, but not decided, whether upon a charge from
receiving from T. S. the receipt from S. S. must be proved, the statute making it crimi-
nal without regard to the person from whom the stolen property is received. R, v. Mes-
singham, R. Sf M. C. C. 257.
On indictment against principal and accessary before the fact, the evidence in
this case must consist' of proof of the guilt of the principal so as to obtain his convic-
tion. The accessary may enter into the full defence of the principal, and avail himself
of every matter of fact, and every point of law tending to the acquittal of the principal,
■for the accessary in this case is to be considered as particeps in lite, and this sort of de-
fence necessarily and directly tendcth to his own acquittal. Fost. 265.
The prosecutor must prove that the accessary had, previous to the crime, procured,
hired, advised or commanded the principal to commit it, and whether this were done
directly or through the intervention of a third person, is immaterial. Fost. 125. It must
appear the accessary was absent when the crime was committed, so that he was not a
principal.
On indictment against an accessary after the fact together with the principal, the pro-
secutor should prove the guilt of the principal. He must prove that the defendant re-
ceived, harboured or maintained him, and knew he had committed a felony. If the pri-
soner, at different times, receive property stolen from the prosecutor, although the sub-
stantive charge must be confined to some one receiving, yet the other receivings may be
given in evidence, to show a guilty knowledge that the goods were stolen. Rex v.
Dunn, Car. C. L. 1.31 ; R. Sf M. C. C. 146. S. C. and see Rex v. Burridge, 3 P. Wms. 439.
He must be proved to have done some act to assist the felon personally, or employed an-
other person to do so. Reg. v. Chappie, 9 Car. ^ P. 355; Reg. v. Jervis, 2 M. Sf Rob. 40.
On indictment against the accessary after conviction of principal, the prosecutor should
prove the conviction of the principal; where the accessary is tried in the same county in
which the principal was convicted, this is easily effected. But if the accessary be tried
in a different county, it is necessary to produce either the record itself or an examined
copy of it. l^his is evidence against the accessary sufficient to put him upon his defence,
for it is founded upon a legal presumption that every thing in tlie former proceeding was
rightly and properly transacted. Holmes v. Walsh,! T. R. 465.
But a presumption of this kind must, as it seems, give away to facts manifestly and
clearly proved. Fost. 365. As against the accessary, therefore, the conviction of the prin.
cipal will not be conclusive; it is as to him, res inter alios acta: for an accessary may
controvert the guilt of the principal, notwithstanding the record of his conviction.
Smithes case, O. B. 1783. 1 Leach, 289. And therefore if it shall come out in evi-
dence upon the trial of the accessary, as it sometimes hath, and frequently may, that the
offence of which the principal was convicted, did not amount to felony in him, or not to
that species of felony with which he was cliargcd, the accessary may avail himself of this,
and ought to be acquitted. Fost. 365. and see Danelly^s case, 1 Russ. 30; 2 Marsh, 371;
Russ.Sf R.C.C.3\Q.
And as in point of law so also in point of fact, if it shall manifestly appear in tlie course
of the accessary's trial, that the principal was innocent, common justice seemeth to re-
HISTORIA PLACITORUM CORONA. 626
quire that the accessary should be acquitted. As suppose a man is convicted upon cir-
cumstantial evidence, strong as that sort of evidence can be, of murder, another is after-
wards indicted as accessary to this murder, and it couicth out upon the trial by incon-
testable evidence tliat the person who was supposed to be murdered is still living, in this
case, certainly, the person indicted as accessary, shall be-acqnitted. Or suppose the per-
son to be in tact murdered, and that it should come out in evidence, to the satisfaction
of the court and jury, that the witnesses against the principal were mistaken in his per-
son, (a case of tliis kind Sir Michael Foster says he has known,) that the person convicted
as principal, was not, nor could possibly have been present at the murder. Fast. 367, 368.
1 Hawk. 457. -
Whatever is evidence against the principal is prima facie evidence of the principal
felony, as against the accessary. If an indictment against a receiver, state the principal
felony to have been committed by A. B. whatever would have been evidence of the prin-
cipal felony to convict A. B. is receivable, to prove this allegation on the trial of the re-
ceiver, but is not conclusive. Therefore if A. B. confessed the principal felony, that
confession is admissible on trial of the receiver to prove the commission of the principal
felony. Rex v. Blick, 4 C. Sf F. 377.
Competency of Witnesses. — The principal, though not convicted or pardoned, may be
examined as a witness against the accessary or receiver. In two prosecutions for a
misdemeanor, on statute 22 Geo. III. c. 58. the principal felons, though not convicted,
were admitted as. witnesses on part of the crown.- Rex v. Fatram Bridgewater^ Sum. Ass,
Cor. Grosse, J. 1787. 2 East, 782. Rex v. Haslam, 1 Leach, 418. 2 East, F. C. 728; sed
vide Reg. v. Lyons, 9 Car. Sf F. 555, where principal and accessary were charged in the
same indictment. So in Jonathan Wild's case, on a prosecution on statute 4 Geo. I.
c. 1 1, for taking a reward to help to stolen goods. 2 East's F. C, 782, 783.
In a case where the principal was indicted for burglary and larceny in a dwelling,
house, and the accessary charged in the same indictment as accessary before the fact,
to the said "felony and burglary," and the jury acquitted the principal of the burglary,
but found him guilty of the larceny; it seems the judges were of opinion that the acces-
sary should have been acquitted, for the indictment charged him as accessary to the
burglary only, and the principal being acquitted of that, the accessary should be acquit-
ted also. R. V. Donnelly, and Vaughan, 1 Russell, 30; 2 Marsh, 571 ; 1 R. Sf R. V. C.
310. S. C.
CHAPTER LVIII.
CONCERNING FELONIES BY ACT OF PARLIAMENT, AND FIRST CON-.
CERNING RAPES.
Having thus considered the felonies that are by the common law, I
now proceed to the handling of felonies by act of parhament, and
because it is hardly possible to reduce the titles of them under any
dependent method, and difficult to digest them under heads, I shall
take them up in order of time, according to the series and order of
the reigns and years of the several kings wherein they were enacted,
only where I meet with any felony in the time of any king's reign,
I shall as near as I can bring together those Acts of Parliament both
before and after, that concern that subject.
And first concerning rape.
Rape was antiently a felony, as appears by the laws of
Jldleslane mentioned by Bracton, Lib. \\\.,{a) and was [627 J
punished by loss of life.
But in process of time that punishment seemed too hard; but the
truth is, a severe punishment succeeded in the place thereof, viz, cas-
(a) De Corona, cap, 28./. 147. a.
627 HISTORIA PLACITORUM CORONA.
tration and the loss of eyes,(6) as appears by Bracton (who wrote in
the time of Henry III.) Lib. III. cap. 28. but then, tho the offender
were convict at the liing's suit, the woman that was ravished (if sin-
gle) might, if she pleased, redeem him from the execution, if she
elected him for her husband, and the offender consented thereunto,
as appears by Bracton uhi supra.
This kind of punishment it seems continued till 3 E. 1. and then
by the statute of fVesfm. 1. cap. 13.,(c) it was enacted, "That none
ravish or take with force a damsel within age with her consent nor
against her consent, nor no dame, damsel of age, nor any other wo-
man against her will; and if any do it, the party may sue within
forty days, and common right shall be done; and if none sue within
forty days, the king shall have the suit, and the party convict shall
suffer two years imprisonment, and be ransomed at the king's plea-
sure.
This statute gives a punishment by imprisonment and ransom only,
if attaint at the king's suit, and takes away castration and putting
out of eyes; but it seems as to the suit of the party, if commenced
within forty days, it alters not the punishment before, Le roy lui
ferra common droiture.
But by the statute of Westm. 2. cap. 3A.{d) the offense of rape is
made felony, " If a man ravish a married woman, dame, or damsel,
where she neither assented before nor after, Eyt judgment de vy <5*
member; if she assent after, yet the king shall have the suit."
This created rape a felony, and therefore it was not inquirable in
a leet, for it was made felony de novo by this statute, 22 E. 4. 22. a.
6 H. 7.4. b.
Rape is the carnal knowledge of any woman above the
r 628 ] age of ten years against her will, and of a woman-child,
under the age of ten years with or against her will. Co.
P. C. cap. 11. p. 60.[1]
(6) By the laws of Wiltiam I. this offense was punished with castration. Vide Leges
Gul. I. I. 19. Wilk. Leg. Anglo-Sux. p. 222 Sf 290.
(c) 2 Co. Instit. 180. (d) 2 Co. Inst. 433.
[1] To constitute the offence there must be a penetration. Rex v. Hill, 1 East^s P. C.
43;). It was held in Bussen^s case, 1 East, P. C. 438, that the least degree of pene.
tration was sufficient, though not attended with tiie deprivation of the marks of vir-
ginity. In that case it was proved, that the parts of the injured party were so narrow
that a finger could not he introduced, and that the hymen was whole and unbroken; £ind
yet this was held a sufficient penetration to constitute the offence, (emission having been
also proved, which was necessary as the law stood at that time;) and see Reg. v.McRue,
8 C. Sf l\ 541.
The offence may be complete though the hymen was not ruptured. Reg. v. Hughes,
9 C. Sf P. Ib2 ; overruling Rex v. Gammon, 5 C. (^ P. 321. -
If penetration cannot be proved, still tlie defendant may be convicted of the assa-ult.
7 Will. IV. 4- 1 Vict. c. 85, s, 11.
Before the 9 Geo. IV. c. 31, s. 18, it was necessary to prove emission, which might be
proved either positively by the evidence of the woman that she felt it, or it might be pre-
sumed from circumstances ; as for instance, that the defendant, alter having connection
with the prosecutrix, arose from her voluntarily without being interrupted in the act.
HISTORIA PLACITORUM CORONA. 628
Rex V. Harmwood, 1 East, P. C. 440; Rex v. Sheridan, 1 East, P. C. 438; Rex v. Bur.
ruics, R. Sf R. 519. But now by that act, s. lH, reciting, "And whereas upon trials for
the crimes of buggery and of rape, and of carnally abu,^ing girls under the respective
ages hereinbefore mentioned, offender's frequently escape by reason of the difficulty of
the proof whicli lias been required of the completion of those several crimes;" for
remedy thereof it is enacted, "That it shall not be necessary in any of those cases to
prove the actual emission of seed in order to constitute a carnal knowledge, but that the
carnal knowledge shall be deemed complete upon proof of penetration only." Since this
enactment, even tliough the jury negative the fact of emission, or the circumstances be
proved to have been such as that no emission did or could take place, the offence is
complete. Rex v. Coze, cited pust.
Any, the sligiitest, penetration is sufficient, even though it do not break the hymen.
Rex V. Russen, 1 East, P. C. 438.
Though it is not necessary in order to complete the offence of rape, that tlie hymen
should be ruptured, provided that it is clearly proved that there was penetration; yet
where that which is so very near to the entrance has not been ruptured, it is very diffi-
cult to come to the conclusion that there 'has been penetration, so as to sustain the
charge. Reg. v. McRue, cited supia.
In a case of rape if there has been penetration, the jury ought to convict of the capi-
tal offence, even though the penetration has not proceeded to the rupture of the hyrnen.
Reg. v. Hughes, 9 Car. Sf P. 752. Confirmed by the judges; and the case of Rex v.
Gammon, 5 Car. S( P. 3"J1, held to be no authority, Gurney, B. concurring. Ih.
Since the Stat. 9 Geo. IV. c. 31, the offence of rape is made out by proof of penetra-
tion ; and in such case a prisoner must be found guilty, although there was no emission,
and although he did not withdraw himself merely because he was satisfied. Rex v.
Jennings, 4 Car. S( P. 249, 1 Lewin, C. C. 93.
The 9 Geo. IV. c. 31, s. 18, does not make emission unnecessary to complete the
offence of rape. Rex v. Russell, 1 M. &f Rob. 122. See Rex v. Coulthart, I Lewin, C. C.
94. But in case of Rex v. Cox, 5 C. Sf P. 297, 1 Mood. C. C. R. 337, which is subsequent
to all these cases, the jury found that there had been penetration, but there had not l)een
any emission from the prisoner, and the fifteen judges held that the prisoner was riglitlj
convicted of rape. See Rex v. Reekspear, 1 Muud. C, C. R. 342.
Qu&re, if emission be expressly negatived, the offence of rape is complete under
9 Geo, IV. r. 31, fi. 18. Brooke's case, 2 Leicm, C. C. 267.
In a case of rape since the passing of tlie statute 9 €ieo. IV. c. 31, s. 18, the only
question for the jury is, whether the private parts of the man did or not enter into the
person of the woman ; and the reason for the limitation to that single inquiry seems
to be, that it was thought that the law was holding itself up to contempt by having the
subtle and critical subjects of emission, &c. discussed before judges and juries. There-
fore, thougli it appear from the evidence beyond all possibility of doubt that the party
was disturbed immediately alter penetration, and before the completion of his purpose,
yet he must be found guilty of having committed the complete offence of rape. R^g. v.
Allen, 9 Car. &f P.'^l.
Proof of injectio serninis, as well as penetration, was essential in an indictment for
rape before the Stat. 9 Geo. IV. c. 31. Rex v. Hill, 1 East, P. C. 439; 5'. P. Rex v.
Cave, I East, P. C. 438 ; but see R'X v. Sheridan, 1 Ea&t, P. C. 438 ; Rex v. Harm,
wood, i East, P. C. 440 ; I Russ. C. 6f M. 560.
Before the Stat. 9 Geo. IV. c. 31, s. 18, if something occurred to create an alarm to a
party while he was perpetating the offence of a rape, it was left to the jury to say,
whetlier he left the body re infectd because cff- the alarm, or whether he left it because
his purpose was accomplished. Rex v. Burrows, R. & R. C. C. 519; 1 Russ.
C. 4-itf. 561.
In case of rape, <fcc. the capital offence is completed if there be penetration, although
there has been no emission, and the prisoner has been interrupted in the commission of
the offence. Rex v. Coxins, 6 Car. <Sc P. 351.
If in a case of rape the jury are satisfied that non resistance on the part of the prose-
cutrix proceeded merely from her being overpowered by actual force, or from her not
being able, from want of strength, to resi>t any longer, or that from the number of per-
sons attacking her, she considered resistance dangerous and absolutely useless, the jury
ought to convict the prisoners of the capital charge; but if they think from the whole of
the circumstances that although when the prosecutrix was first laid hold of, it was
against her will, yet she did not resist afterwards, because she in some degree consented
VOL. I.-;— 54
628 HISTORIA PLACITORUM CORONA.
The essential words in an indictment of rape are rapuU ($• carna-
liter cognovit, bi.it carnuUter cognovit, nor any other circimiloculion
to what was afterwards done to her, they ought to acquit the prisoners of the capital
charge, and convict tliem of an assault only. Ri^g. v. Hallet, 9 Car. iSf P. 748.
At the time when the 9 Geo. IV. c. 31. passed, it is perfectly clear that in order to
constitute the crime of rape, tliere must have been both penetration and emission, conse-
quently it lay upon the prosecutor either to give express evidence of actual emis.sion, or
to prove sucli facts as were sufficient to induce the jury to infer that emission had actu-
ally taken place. In some cases the woman was unable to prove emission, either be-
cause she did not perceive it, or (as was the case in Rex v. Frcston, Stafford Spr. Ass,
1828, where a father was convicted of ravishing two of his daughters) because alter
penetration she fainted away. In such cases it was tlie course to leave it to the jury to
infer tiiat emission had taken place, as there was nothing to show that the prisoner had
not fully completed his purpose, and acquittals sometimes took place because juries were
unwilling to infer a fact which had not been clearly proved, especially when such an in-
ference subjected the prisoner to capital punishment. Such being the state of things, the
9 Geo. IV. c. 31, was passed; and the question is whether that act has altered the crime
of rape so that instead of consisting of both penetratiorl and emission, it now consists of
penetration. According to all tlie recent decisions (see Rex v. Great Bently, 10 6. iSf C.
520; Wiiliams v. Roberts, 5 Ttjrw. 421; Flight v. Thomas, 11 Ad. &; E. 688.) this
oufht to be determined upon the grammatical construction of the words of the statute
alone. In sect. 16 there is a separate substantive clause providing that "every person
convicted of tlie crime of rape shall suffer death as a felon." Now here the crime is
treated as one as clearly settled and defined as the crime of murder, i. e. as consisting of
both penetration and emission. It is, however, upon sect. 18 that the question mainly
turns. That section recites that " upon trials" for the crimes {inter alia) of rape, offenders,
(that is persons guilty of these crimes) "frequently escape by reason of the difficulty of
the proof which has been required of the completion of those several crimes," (the mis-
chief therefore was tiiat persons who had committed rapes consisting both of penetration
and emission, liad escaped by reason of the difficulty of proving both penetration ^and
emission) "for remedy thereof, (that is to remedy the escape of persons who had com-
mitted such rapes consisting oi^ both penetration and emission,) be it eiiacted thai it shall
not be necessary in any of these cases to prove the actual emission of seed," (not that
emission shall be no part of the crime) "but that tlie carnal knowledge" (i. e. both pene-
tration and emission) "shall be deemed" (presumed) "complete upon proof of penetration
only." Now, it is to be observed that there is no intimation whatever of any intention to
alter the crime : on the contrary, the clause evidently treats the crime as continuing the
same, but is I'ramed to render the means of proving it more easy. It is submitted that
upon the true construction of this clause, its effect is, that whereas before the passing of
the statute the prosecutor was bound not only to prove penetration, but to go further and
give such evidence as satisfied the jury that emission had actually taken place, he is now
only bound to prove penetration : on proof of which a presumption arises by virtue of
the clause that emission has also taken place, but that this presumption is liable to be
rebutted, by showing that in fact emission did not take place. In other words, all the
prosecutor has now to prove is penetration, and upon that the jury ought to convict,
unless it be proved by the prisoner that he did not in fact complete his purpose. This is
the view which seems to have been taken by Alderson, B. in Coultharfs case, (1 Russ.
G, 4" M. note, p. 683, 3(/. ed.) and it is ■submitted is the correct construction of the
clause. There are several statutory provisions of a similar character, as the 23 Geo.
II. c. 11. s. 3. for remedying the difficulties attending prosecutions for perjury, and the
statutes which make a certificate of the clerk of assize evidence of a previous conviction,
&c. and it is evident that none of these alter the offence, but only facilitate the proof of
it. At all events, the clause does not alter the crime, and it is against all the authorities
to hold that felony can be created by an}' but express and clear words. In Searle v.
miliams, Hob. 2Lt3, it is laid down that " felonies and capital crimes shall never be
made by doubtful and ambiguous words." And in Coinlein''s case, Hob. 210, it was
"resolved clearly that no statute could be extended to life by doubtful and ambiguous
words;" and see Hawk. F. C. c. 41. s. 3. In Rex v. Cale, R. 4- M. C. C. R. 11, it was
held by a majority of the judges that the 3 Geo. IV. c. 24. s. 3. which provided that the
receiving stolen goods should be '•'■ deemed and construed to be felony," did not create a
felony'; and although that case be overruled by Rex v. Solomons, R. iV ^t- ^- ^' ^- 292,
still it is a strong authority to show how clear and distinct the words which create a
HISTORIA PLACITORUM CORONA. 628
without the word rnpiiit are not sufficient in a legal sense to express
rape. 1 H. 6. 1. a. 9 E. 4. 26. a.[2]
new felony, are required to be even where the words be such as to leave no doubt that it
was inlendcd to create such felony. It may be added that the decision in Rex v. Cox
gives a great facility to convict the innocent in those cases which not uiifrequently
occur, where the parties being accidentally discovered in coitu, the woman makes a
false charge in order to save her character. Greave^s note, 1 Russ. on Vr, & M. 685
3d Land. ed. ^ blh Am. ed. 1845.
In this country proof of emission seems never to have been required. The State v.
Le Blanc, 3 Brev. Rep. 339. In several instances it has been held that as the essence
of the crime is the violence done to the person and feelings of the woman, which is
completed by penetration without emission, it is sufficient to prove penetration only.
Pennsylvania v. Sullivan, Add. R. 143. Stroud v. Com. \l S. Sf R. 177. Com. v. Thomas
1 Virginia Cas. 307.
The slightest penetration is sufficient. Rex v Russen, cited supra.
In JSew York, penetration alone without emission will support a conviction under the
Rev. Stat. 2 Rev. Slat. 663.
For the statutes of the U. S. see the Crimes Act, 3d March, 1825, sect, 4 and sect 7.
For the Massachusetts statutes, see Rev. Stat, c. 125, s. 18, ch. 137. s. 11. As to the
construction of this stat. see Com. \. Cooper, 15 Mass. R. 197; and see Com. v. Robu
12 Pick. R. 496, 507, though this is upon an earlier statute, still as thev are in pari
materia, the authority is valuable. Com. v. Goodhue, 2 Mete. Rep. 193. Com. v. Bruce
6 Penn. L. J. 236. S. P. on a like act.
For the New York statutes, see 2 Rev. Stat. 603. sects. 22 &, 23.
For the New Jersey statutes, see Statutes of N. J. 1847. tit. " Crimes and Punishments "
p. 259. §10.
For the Pennsylvania statutes, see Stroud's Purd. Dig. 904. § 4. Gth ed.; Id. 943.
Ith ed. § 36; Act of April 23d, 1829; Stroud's Purd. Dig. 992. 1th ed.
For statutes of Virginia, see Rev. Code, c. 158, pect, 1 ; Id. c. 258, sect. 3; Act of
1837, c. 71. •'
[^] It must be alleged that the rape was committed with violence and against the will
of the woman. 3 Chit. C. L. 815. Also, that she was ravished, alleging merely that the
defendant carnally knew her is not sufficient. 1 Russ. C. ^ M. 6«6. It is proper to
allege that the defendant carnally knew her, but the omission would, it seems, be cured by
verdict. Rex y. Warren, 1 Russ. C. ^ M.3d ed. 686; and see 2 Inst. 180; 2 Hawk. P.
C. c. 25. s. 56. An indictment charging that the defendant in and upon A. B. " feloni-
ously and Wolently did make [omitting the words "an assault,"] and her, the said A, B.
then and there against her will, violently and feloniously did ravish and carnally know,"
&.C. was held sufficient in arrest of judgment. Reg, v. Allen, 9 C Sf P. 521. It seems
necessary to conclude that the offence was against the form of the statute. 1 Russ C Se
M. 687. 3d ed; see Rex v. Scott, R. <^ R. 415.
In Rex V. Burgess and others, Chester Spr. Ass. 1813, upon an indictment charging
three persons jointly with the commission of a rape, an objection was taken that three
persons could not be guilty of the same joint act, but it was overruled upon the ground
thai the legal construction of the averment was only' that they had done such acts as
subjected them to be punished as principals in the oiTence. The execution was, how-
ever, respited, probably with a view to enable the learned judges to consult other autho-
rities on the accuracy of their opinion; but the prisoners were afterwards executed.
5 Ev. Col. Stat. CI. 6. p. 244. note (17). 2d ed. and see 1 Russ. C. S( M. 801.
A general conviction of a prisoner, charged both as pri-ncipal in the first degree, and
as aider and abetter of other men in rape, is valid, on the count charging him as prin-
cipal. And on such an indictment evidence may be given of several rapes on the same
woman, at the same time by the prisoner and other men, each assisting the other in turn,
without putting the prosecutor to elect on which count to proceed. Rex v. Folkes, R. &
M. C. C. 354; and see Reg. v. Gray, 7 C. Sf P. 164.
An indictment is good which charges that A. committed a rape, and that R. was pre-
sent aiding and assisting hirn in his commission of the felony. Reg. v. Crisham, 1 Car.
4" M. 187. In such case the party aiding may be charged either as he was in law, a
principal in the first degree, or as he was in fact, a principal in the second degree. lb.
See Arch. Crim. P. C. 481. 10(A Lond. Ed.
628 HISTORIA PLACITORUM CORONA.
To make a rape there must be an actual penetration or res in re,
(as also in bnggery) and therefore eiiiissio seniinis is indeed an evi-
dence of penetration, but. singly of itself it makes neither rape nor
bnggery, but it is only an attempt of rape or bnggery, and is Sjcverely
punished by fine and imprisonment. Co. P. C. cap. 10. p. 59.
But the least penetration maketh it rape or buggery, yea altho
there be not emissio seminis. Co. P. C. uhi.supru; the old expres-
sio!i was abstiilit ei virginiiatem, and so\nQ{\n\es pucellagium 8uurn.
Bract. Lib. Ill.(e)
And therefore I suppose the case in my lord Coke's 12 Pep. 36.
5 Jac. that saith, there must be both, inz. penetratio <§' emissio semi-
nis to make a rape or buggery, is mistaken, and contradicts what he
saith in his pleas of the crown; and besides, it is possible a rape may
be commilteii by some, quihns virgse erectio adsit, <§' emissio seini-
nis ex quodam, defectu desi/, as physicians tell us.
If t/^. actually ravish a woman, and B. and C. were present, aid-
ing, and abetting, they are all equally principal, and all subject to the
same punishment both at common law and since the statute of ("Feslm.
2. de quo infra.
it appears by Bracton uhi svpra, that in an appeal of rape it was
a good exception, quod ante diem S,' annum contentas in appello
kabuit earn ul concubinam S,- amicum. t^' inde ponil se super pa-
triam, and the reason was, because that unlawful cohabitation car-
ried a presumption in law, that it was not against her will.
But this is no exception at this day, it may be an evidence of an
assent, but it is not necessary that it should be so, for the
r 629 "I woman may forsake that unlawful course of life.
But the husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their nuitual matrmionial consent
and contract the wife hath given up herself in this kind unto her hus-
band, which she cannot retract. [3]
t^. the husband of B. intends to prostitute her to a rape by C.
against her will, and C. accordingly doth ravish her, ./^. being present,
and assisting to this rape: in tliis case these points were resolved,
1. That this was a rape in C. notwithstanding the husband assisted
in it, for tho in marriage she hath given up her body to her husband,
she is not to be by him prostituted to another. 2. That the husband
being present, aiding and assisting, is also guiliy as a principal in
rape, and therefore, altho the wife cannot have an appeal of rape
against her husband, yet he is indictable for it at the king's suit as a
principal. 3. That in tins case tlie wife may be a witness against her
(e) De corona, cap. 28./. 147 6.
[3] A man having^ connexion will) a woman under a deceit practi.«cd on -her, she sup-
posinsf him to be her iiusband, i.s not ffuilty of the offence of rape. Rfix v. Jackiion, R. Sf
Ry. 487; Rex V. Saunders, 8 Car. Sf /^ 265; Rrx.v. Williams, Id. 286. He might,
however, be convicted of an assault under 7 U m. IV. Sf 1 Vict, c, 85. p. 1 1 ; Reg. v.
Stanton, 1 Car. Sf Kir. Rep. 415; Hays v. The I'eople, 1 HilVs N. Y.i2e/>. 351; Tlie
People V. Metcalf, 1 Wheeler's Cr. Cas. 378. 381.
HISTORIA PLACITORUM CORONA. 629
husband, and accordingly she was admitted, and A. and C. were both
executed. 8 Car. 1. Casus comifis Cas//e/iaven.{f)[4'\
If ./^. by force take B. and by force and menace compel ber to
marry him, and then with force J?, hath the carnal knowledge of ^.
against her will,tho this marriage he voidable, yet it is not so simply
void as to enable fier to maintain an appeal of rape against A. for she
may by her consent affirm this voidable marriage, and therefore in
the like Case, Not. Pari. 15 H. 6. n. 15. there was a special act of
parliament to enable the lady Isabel Buffer to bring an appeal of
rape against IVilliam Pull in that case notwithstanding that mar-
riage; but that marriage had been dissolvable by a declaratory sen-
tence in conrt christian, becanse obtained by a plain force; and if
such a dissolution of the marriage had been obtained, then it seems
to me, that, if the carnal knowledge of her were forcible and against
her will as well as the marriage, that rape was punishable as well by
appeal at the suit of the lady, as by indictment at the suit of the king,
without the aid of an act of parlian)ent, for it was really a rape, only
the marriage de facto was an impediment of its punishment
so long as de facto the marriage continued, but now that [ 630]
impediment being removed by the declaratory sentence, and
the marriage made void ah initio, it is all one as if it had never been,
and tho relation be a legal fiction and intenfa ad umtm, yet in this
case the marriage and carnal knowledge being one intire act of force,
and consecutive one upon another, in the real effect of that first force,
it shall remain punishable as if there had been no marriage at all;
but the statute of 3 H. 7. cap. 2.{q) hatii provided a remedy in this
case, so that this difficulty, need not come in question.
An infant under the age of fourteen years is presumed by law un-
able to commit a rape, and therefore it seems cannot be guilty of it,
and tho in other felonies malitia supplet setatem in some cases as
ha^ been shewn, yet it seems as to this fact the law presumes him
impotent, as well as wanting discretion. [5]
But he may be a principal in the second degree, as aiding and
assisting, tho under fourteen years, if it appear by sufficient circum-
stances, that he had a mischievous discretion, as well as in other
felonies.[6]
Thus far of the nature of rape, and who may be culpable of it.
Now we will consider upon whom it may be committed, and some
other considerations touching this fact.
(/) See Hat. 115, Rush. Coll. Vol. II. p. 93.— 101. State Tr. Vol. I. p. 366. 12
Mod. 340.
{g) By lliis statute a forcible taking away and marrying a woman against her will is
made felony.
[4] 1 Russ. on C. ^ M. 676. 3d Ed.
[5] See Com. v. Lniigan, 2 Bost. Law Reporter, 49. Per Thatcher, J.; Rex v. Brom.
low, 2 Mood. C. C. 12^ ; Rex v. Groomridge, 7 Car. S^ Pay. R. 562; Best on Presump.
22; Reg.x. I'hi'lips, 8 Car. S^ Pay. Ti^;Rex v. Jordan, 9 Id. 118; sed vide Com, v.
Green, 2 Pick. R. 380; ante p. 26. note.
[6] Lord Audley's case, 3 how. St. Tr. 419; Rex v. Elders^aw, 3 Car. Sf P. 391.
630 HISTORIA PLACITORUM CORONA.
It was doubted, whether a rape conld be committed upon a female
child under ten years old, Mich. 13 <S- 14 Eliz. Dy. 304. a. By tlie
statute of IS Eliz. cap. 7. it is declared and enacted, " Tliat if any
person shall unlawfully and carnally know and abuse any woman-
child under the age of ten years, it shall be felony without the benefit
of clergy."
My lord Coke adds the words, either with her will or against her
laill, as if were she above the age of ten years, and with her will, it
should not be rape; but the statute gives no such intimation ; only
declg-res tliat such carnal knowledge is rape.
And therefore it seems, if she be above the age of ten
|] 631 [] years and under the age of twelve years, tho she consent,
it is rape. 1. Because the age of consent of a female is not ten
but twelve. 2. By the statute of fVestni. 1 cap. 13. Roy defend, que
nul ne ravise ne prigne a force damsel deins age, ne per son grce ne
sans son grce; and my lord Coke'in his exposition upon that statute(/^)
declares, that these words deiiis age must be taken for her age of
consent, viz. twelve years, for that is her age of consent to marriage,
and consequently her consent is not material in rape, if she be under
twelve years old, tho above ten years old, altho tliose words are by
some mistake crept into my lord Coke\s definition of rape, Co. P. C.
cap. 11. but if she be above the age of twelve years, and consenting
at the time of the fact committed, it is not felony.[7]
(A) 2 Instit. 182. See 4 Bl. Com. 212.
[7] Attempting to carnally know and abuse a girl between the ages often arid twelve,
is not an assault, if tlie girl consents to all that is done, but is a misdemeanor. Reg. v.
Mortin, 9 Car. Sf P. 213 ; 2 Mood. C. C. R. 123. The person making such attempt, with
the consent of tlie girl, is not indictable for an assault, but is indictable for the misde-
meanor of attempting to commit the misdemeanor of carnally knowing and abusing^er.
lb. On an indictment for attempting to carnally know and abuse a girl under ten years
of age, with a count for a common assault, the attempt was proved, but it could not be
shown tliat the child was under ten years of age, and it also appeared that no violence
was used by the prisoner, and no actual resistance made by the girl: Held, that although
consent on the part of the girl would put an end to the charge of assault, yet there was
a great difterence between consent and submission, and that, although in the case of an
adult submitting quietly to an outrage of this kind, would go far to show consent, yet,
that in the case of a child, the jury should consider whether the submission of the child
was voluntary on her part, or was the result of fear, under the circumstances in which
she was placed. Reg. v. Day, 9 Car. «Sf P. 722.
Where the prisoner decoyed a female child into a building for the purpose of ravi.shing
her, and was there detected, while standing within a few feet of her, in a state of inde-
cent exposure, it was held, that though there was no evidence of his having actually
touched her, he was properly convicted of an assault with intent to ravish. Hays v. The
People. 1 HiWs N. Y. Rep. 351. Reg.v.Neale, 1 Car. Sf Kir. 591. Arcbb, Crim.Pl. 484.
10th Land. Ed.
An indictment in the first count charged the defendant with having assaulted " E. R.
an infant, above the age of ten years, and under the age of twelve years," with intent to
carnally know and abuse her; and in the second count charged that the defendant '' un-
lawfully did put and place the private parts of him, the said T. M. against the private
parts of her, the said E. R. and did then and there dniawfully attempt and endeavour to
carnally know and abuse her, the said E. R." Held, that the second count was bad, as it
did not allege that E. R. was between the ages of ten and twelve : Held also, that the
words " the said E. /^." merely meant that she was the person as mentioned in the first
HISTORIA PLACITORUM CORONA. 631
• But if she were above the age of twelve years, and consented upon
me.nace of death, if she consented not, this is not a consent to excuse
a rape. 5 E. 4. 6. a. Dalt. cup. 107 {i)
And therefore that opinion of Mr. F/zic// cited by Daltonubi sitprOf
. ajid by Stamford, cap. 14. fol. 24. out o( Bri/fon, that it can be no
rape, if the woman conceive with cliild, seems to be no law, rnulier
erihni vi oppressa concipere potest.
If the woman consented not at the time of the rape committed,
bnt consented after, she shall not have an appeal of rape by the statute
of fV-estm. 2. cap. 34. but yet the king shall have the suit by indict-
ment, and by the statute of 6 R. 2. cap. 6. if she have a husband, he
shall have an appeal, and if she have none, then her father or other
next of blood shall have an appeal of such rape; and by the same
statute as well the ravisher as the ravished, that so assented, are dis-
abled to have any dower, inheritance or jointure; and the next of
blood of such ravisher or assenting ravished, to whom their lands
should revert, remain or fall after their death, shall enter upon the
same, and hold it as an estate of inheritance.
But an assent after through menace of death is not such an assent,
as Incurs this penalty; quod vide 5 E. 4. 6. a.
As in other felonies, so in this there are or may be acces-
saries before and after, {ox tlio this be a felony by act of par- [ 632 ]
liament, that s[)eaks only of those that commit the offense,
yet consequentially and incidentally accessaries before and after Sive.
included, and so in every new statute making a felony without speak-
ing of accessaries before or after. Co. P. C. cap. 10. p. 59. and so in
buggery.
And note, that at the time of the making of the statute of 13 E. 1.
, . (i) New Edit, cap. 160. p. 524.
Cotint, but that those words did not impart into the second count the description of E. R
with respect to her age. Re^. v. Martin, 9 Car. Sf F. 215. A count charging A. with a
rape, as a principal in the first degree, and B. as a principal in the second degree, may
be joined with another count, charging B. as principal in the first degree, and A, as
principal in the second degree. Rex v. Gray, 7 Car. Sf P. 164.
The first count of an indictment charged an assault with intent to ravish: the second
a common assault. The record went on to state that the jury found the defendant guilty
of the misdemeanor and offence in the said indictment specified, in manner and form as
by Ihe said indictment is alleged against him, and the judgment was imprisonment and
hard labour: Held, on writ of error, that the " misdemeanor" was novem coUectivum, and
that the finding of the jury was in effect, that the defendant was guilty of the whole
matter charged, and that the judgment was therefore warranted by the verdict. Rex v.
Fowell, 2 B. 1^ Adol. 75.
The words " forcibly and against the will," are necessary in tiie indictment. See Resr.
V. Stanton, before cited, p. 628, though in Pennsylvania it has been held in the case of
Harmon v. The Com. 12 Ser. Sf R. 69, (Arc. Com. v. Bennett, 2 Virg. Cas. 235,) that
their omission was not fatal, when it was charged that the defendants " feloniously did
ravish and carnally did know her." Where an indictment for a rape charged that the
defendant " with force and arms, &c. in and upon one Mary Ann Taylor, in the poace
of the State, &c. violently and felrtBiously did nuke an assault, and her the said Mary
Ann Taylor, then and tiiere violently and against her will, feloniously did ravish and
carnally know," it must be shown with certainty that Mary Ann Taylor was a female
The State v. Farmer, i Iredell, R. 224.
632 HISTORIA PLACITORUM CORONA.
rape was not felony, for it had long continued under the nature only,
of a misdemeanor and not a felony, and therefore it is not at this day
inqnirable in a leet, because it is a felony nevvlv created. 6 H. 7.4. b.
22 E. 4. 22. a.
The regular means of bringing this offense to judgment was either
at the suit of the king by indictment, or at the suit of the parly by
appea^.
The indictment ought to have these ingredients. 1. It must be
felonice. 2. It must he rupuit &; carnaUter cognovit. 3. It must
conclude contra formam slaluti 13 4* 14 Eliz. Dy. 304. a. See
ante p. 628. note.
It may be prosecuted by indictment at any time, /or nullum itm-
pus Qccurrit re,s^i.
An appeal of rape hes for the party ravished, and if she consent
after the rape, she is barred of her appeal, and her husband, if mar-
lied, or the next of kin, if single, may have the appeal by the statute
of 6 R. 2. cap. 6.[S]
If the next of km were the ravisher, his next of kin shall have the
appeal by the equity of the statute of 6 jR. 2. 28. H. 6. Coron. 459.
As to the appeal of the party ravished two things are necessary,
1. That she make fresh discovery and pursuit of the oflense and ofien-
dcr, otherwise it carries a presumption that her suit is but malicious
and feigned; this Bracton at large describes Lib. III. cap. 2S.f. 147.
a. Cum igitur virgo corrupta fuerit & oppressa, slatim cum factum
lecens fuerit cum clamore &. hutesio debet accurrere ad villas vicinas,
& ibi injuriam sibi illatam probis hominibus ostendere, sanguinem &
vestes suas sanguine tincfas & vestium scissuras, & sic ire debet ad
pra^positum hundredi .Sc ad servientem domini regis, & ad coronatores
& vicecomitem, & ad primum comitatum facial appellum,
[] 633]] Ǥ'C. 2. That the appeal be speedily prosecuted, for it seems,
that a year and a day be not allowd in this appeal, but some
short time, tho it be not defined in law what time, but lies much in
the discretion of the court upon the circumstances of the fact, yet the
statute of JVestm. 1. cap. 13. allowd but forty days: long delay of
prosecution in such a case of rape always carries a presumption of a
malicious prosecution. 3. If the wife hath once consented after, her
appeal is barred.
By the statute of IS Eliz. cap. 7. the principals in rape are ousted
of clergy, whether they be principals in the first degree, viz. he that
committed the fact, or principals in the second degree, viz. present
aiding, and assisting; but accessaries before and after have their
clergy.[9]
Touching the evidence in an indictment of rape given to the grand
jury or petit jury.[10]
[8] Appeal for rape is now abolished. See 59 Ge^ III. c. 46. 4 Steph. Com. 385.
[9] Abolished by 7 & 8 Geo. IV. c. 28. See 4 Slept. Com. 121.
[10] Tl)e fact of the woman having made a complaint after the commission of the
alleged rape is evidence, but not, it seems, the particulars of such complaint : R. v. Walker,
HISTORIA PLACITORUM CORONA. 633
The party ravislied may give evidence upon oath, and is in law a
competent witness; but the credibility of her testimony, and how far
forth she is to be beheved, must be left to the jury, and is more or
less credible according to the circumstances of fact tliat concur in that
testiniouy.
2 Mno. Sf Rob. 212; 1 Russ. C. Sf M. -by Greaves, 3d ed. 689, even though the woman is
dead; Retr. v. Megson, 9 C ^ F. 420. And where the woman is absent, it is not allow-
able to prove that she made a complaint soon after the alleged rape ; for such evidence
is merely confirmatory of the story of the woman, and no part of the res gestcB. Reg. v.
GuUridgfi,0 C. Sf I'. 471.
The defendant may give evidence of the woman's notoriously bad characler, for want
of chastity or common decency,, or that she had before been connected with the prisoner
himself; but he cannot aive evidence of any otlier particular facts to impeach her chas-
tity. Rrx V. Hodgson, R. Sf R. 211; I Phil. Ev 190; Rex v. Clarke, 2 Stark. 243. So
what she herself said so recently after the fact, as to yeclude tlie possibility of her being
practised, has been holden to be admissible in evidence as a part of the transaction, but
the particulars of her complaints are not evidenee of the trutli of her statements. Rex v.
Brazier, I East's P. C. 444; Rex v. Clarke, 2 Sturk, 241. The woman, however, is not
compellable to answer whether she had any connexion with other men, or with a parti-
cular person named; nor is evidence of tier liaving liad such, connexion admissible. Rex
V. Hodgson, R. Sf R. 211.
On tire trial of an indictment for rape, it was held that the prisoner's counsel might
ask the prosecutrix the following questions, with a view to contradict her, " Were you
not, &c. (since the time of the alleged offence) walking in High street, at Oxford, to look
out for men?" " Were you not on, 6lc. (since the time of tiie alleged offence) walking
in High street with a woman reputed to be a common prostitute?" It was also held,
that evidence might be adduced by the prisoner to show the general light character of
the prosecutrix, and that general evidence might be given of her being a street walker;
but semble, that evidence of specific acts of criminality by her, would not be admissible.
Rrx V. Barker, S C. Sf P. 589; Rex v. Martin, 6 C. S( P. 562.
The party grieved is so much considered as a witness of necessity, in this as in other
personal injuries, that if one man assist another man to ravi.sh his own wife, she is ad-
missible as a witness against hini. Lord Audley's case, 3 HoweWs St. JV. 419, cited in
1 East's P. C. 444,
Punishment. — By the 9 Geo. IV, c. 31, s, 16, this offence was punishable with death;
but now by the 4 &. 5 Vict. c. 56. s. 3, reciting the 9 Geo. IV. c. 31. ss. 16 & 17, it is
enacted, '' That from and afler the commencement of this act (ls< October, 1841) if any
person sliall be convicted of any of the said offences hereinbefore last specified, such per-
son shall not be subject to any sentence, judgment, or punishment of death, but shall,
instead of the sentence or judgment in and by the said act hereinbefore last recited, or-
dered to be given or awarded against such persons convicted of the said last mentioned
offences, or any of them respectively, be liable to be transported beyond the seas for the-
term of his natural life." As to punishment of accessaries, see 9 Geo. IV. c, 31, s. 31,
Evidence. — A prisoner may be convicted of rape, upon the unsupported evidence of an
infant under years of discretion, if the jury are satisfied that the evidenee is such as to
leave no reasonable doubt of the prisoner's guilt. Anon 1 Russ. C. Sf M. 556. In cases
of carnal knowledge of children, the infant witness, though under seven years of age, if
advised of the nature of an oath, must be sworn. Rex v. Brazier, 1 Leach, C. C. 199;
1 East, P. C. 443. And see Rex v. Bunnell, 1 East, P. C. 442.
A prisoner was charged with carnally abusing a child under ten years old, on Febru.
ary 5, 1832. To prove the child under ten years old, an examined copy of the register
of her baptism, on February 9, 1822, was put in, and the child's father stated that he
lelt his house about a week before the 9th of February, 1822, his wife not being then
confined, and that on his return on that day, he found this child, and was told by his
wife's mother that it had been born on the day before: Hfld, that this was not sufficient
evidence of the child's being under ten years old. Rex v. Wedge, 5 Car. ^ P. 298.
On the trial of an indictment for a rape, the prosecutrix may be ask^d, whether pre-
viously to the commission of the alleged offence, the prisoner had not intercourse with
her by her own consent. Rex v. Marlin, 6 Car. Sf P. 562, A defendant will be acquitted
633 HISTORIA PLACITORUM CORON^E.
For instance, if the witness be of good fame, if she presently dis-
covered the ofl'ense made pursuit after the oflender, shewed circum-
stances and signs of the injury, whereof many are of that nature, that
only women are the most proper examiners and inspectors, if the
place, wherein the fact was done, was remote from people, iuhaln-
tants or passengers, if the offender fled for it ; these and the like are
concurring evidences to give greater probability to lier testimony,
when proved by others as well as herself.
But on tiie other side, if she concealed the injury for any consider-
able time after she had opportunity to complain, if the place, where
the fact was supposed to be committed, were near to inhabitants, or
common recourse or passage of passengers, and she made no outcry
when the fact was supposed to be done, when and where it is pro-
bable she might be heard hv others ; these and the like circumstances
carry a strong presumption, that her testimony is false or feigned.
If the rape be committed upon a child under twelve years
[ 634] old, whether or how she may be admitted to give evidence
may be considerable.(*)
(*) For she might at that age maintain an appeal pro raptij, Pasch. 33. E. 1. Rot. 16.
in dorso. London. Coram Rige. Ja7nes Pochin merchant was attached, and brought
Cornm Rege to answer to Isabel daughter of Emma de Lnngeleijr. de raptu «.y pace reiiis
fractd, who appeal'd him alter tiiis marmer, per qucndatn narratorem suiim diren^, —
Isabella yi/!7a Emmae de L'angcleye, de state novem annoruin S^' dimidii dicit, quod pr(t-
dictus Jacobus die dominica proximd post fe stum sancti Martini, anno R. R. E. 33, apnd
London in altd strata regis ex oppositu ecclcsicc sancti Beneilicti de Scherhog liora vesper-
tina ipsam Isabellam cepit, ^ in qiiddam tab'ernd sua portamty ^ contra pacem domini
reiris cittii ed concuhuit, ^ virginitatem siiam rapttit; ^- petit quod jastitinrii domini regis
super hoc sihi facia nt justitiam. <^" remedium. Et queritiir, quod pradicta transgressjo
sibi facta fuit die ^ anno pncdictis ad dampnum ipsius Isabella; centum liirarum, i^c.
Et prcedictus Jacobus venit,'^- defendit oinnem feloniam, raptum, &^c. El pelis ullocan-
tiam de appello ipsius Isabellai ; deslcut ipsum Jacobum per verba in appello usualia, Sf
necessaria, ac convenientia, non appMat, Et quia constat curia quod appellum, ^c. in-
sufficiens est, consrderatum est, quod pradicla Isabella committntur marescallo; ^ postca
ei remittitur prisona, ^- prccdictus Jacobus quoad appellum ipsius Isabellas eat inper-
petuum quietus, Sfc. He was then arraigned at the king's suit de raptu prtedicto, and was
tried, and convicted; but the king afterwards remisit presdicto Jacobo judicium vita Sf
membrorum; 6^ quod faciat redemptionem pro delicto prcadicto, S^ Jinem fecit cum domino
rege per centum libras.
in an indictment for an assault with intent to ravish, if the evidence amounts to proof of
an actual rape. Rex v. Harmwood, 1 Russ. C. S^ M. 560, 564; 1 East, P. C. 411. Under
an indictment for an assault with intent to commit a rape, the defendant may impeach
the prosecutrix's character for chastity, by general but not particular evidence. Rex v.
Clarke, 2 Stark, 241. But the character of tiie prosecutrix as to general chastity, may be
impeached by general evidence. lb. The fact of her making complaint of tiie outrage,
and the state in which she was at the time of making tiie complaint, are evidence. lb.
On an indictment for an assault with an intent to commit a rape, evidence that the
prisoner, on a prior occasion, had taken liberties with the prosecutrix, is not receivable to
show the prisoner's intent. Rex v. Lloyd, 7 Car. Sf P. 318. In order to convict on a charge
of assault, with intent to commit a rajie, the jury must be satisfied, not only that the pri-
soner intended to gratify his passions on the person of the prosecutrix, but that he
intended to do so at all events, and notwithstanding any resistance on her part. Ih,
In an indictment for a rape, the deposition of a girl taken before the committing ma-
gistrate and signed by him,. may, after her death, be read in evidence at the trial of-the
prisoner, althougii it was not signed by her, and she was under twelve years of age, pro-
vided she was sworn, and appeared competent to take an oath, and all the facts necessary
to complete the crime may be collected from her testimony so given in evidence. Rex v.
Flemming, 2 Leach, C. C. 854 ; 1 East, P. 0. 440.
HISTORIA PLACITORUM CORONA. 634
It seems to me, that if it appear to the court, that she hafh that,
sense and understanding that she knows and considers the ohMgatioii
of an oath, tho she' be under twelve years, she may be sworn; thus
we find it done in case of evidences against witches, an infant of nine
years old was sworn. Dalt. cap. 111. 77. 291. {k)
But if it be an infant of such tender years, that in point of discre-
tion the court sees it unfit to swear her, yet I think she ought to be
heard without oath to give the court information, tho singly of itself
it ought not to move the jury to convict the offender, nor is it in itself
a sufficient testimony, because not upon oath, without concurrence
of other proofs, that may render the tiling probable; and my reasons
are, 1, The nature of the oflense, which is most times secret, and no
other testimony can be had of the very doing of the fact, but the
party upon whom it is committed, tho there may be other concur^
rent proofs of the fact when it is done. 2. Because if the child com-
plains presently of the wrong done to her to the mother or other
relations, their evidence upon oath shall be taken, yet it is but a nar-
rative of what the child told them without oath, and there
is much more reason for the court to hear the relation of the [ 635 ]
child herseh^, than to receive it at second-hand from those
that swear they heard her say so; for such a relation may be falsi-
fied, or otherwise represented at the second-hand, than when it was
first delivered.
But in both these cases, whether the infant be sworn or not, it is
necessary to render their evidence credible, that there should be con-
current evidence to make out the fact, and not to groiuid a con-
viction singly upon such an accusation with or without oath of an
infant.
For in many cases there may be reason to admit such witnesses to
be heard, in cases especially of this nature, which yet the jury is not
bound to believe; for the excellency of the trial by jury is in that
they are the triers of the credit of the witnesses as well as the
truth of the fact; it is one thing, whether a witness be admissible
to be heard, another thing, whether they are to be believed when
heard.
It is true rape is a most detestable crime, and therefore ought se-
verely and impartially to be punished with death; but it nnist be
remembered, that it is an accusation easily to be made and hard to
be proved, and harder to be defended by the party accused, tho never
so innocent.
I shall never forget a trial before myself of a rape in the county of
Sussex.
There had been one of that county convicted and executed for a
rape in that county before some other judges about three assizes
before, and I suppose very justly: some malicious people seeing
how easy it was to make out such an accusation, and how difficult it
was for the party accused to clear himself, furnished the two assizes
(k) New Edit. p. oil. -
635 HISTORIA PLACITORUM CORONA.
following with many indictments of rapes, wherein the parties ac-
cused with some ditficulty escaped.
At the second assizes following there was an antient wealthy man
of about sixty-three years old indicted for a rape, which was fully
sworn against him by a young girl of fourteen years old, and a con-
current testimony of her mother and father, and some other rela-
tions. The antient man, when he came to his defense,
[ 636 ] alledged that it was true the fact was sworn, and it was not
possible for him to produce witnesses to the negative; but
yet, he said, his very age carried a great presumption that he could
not be guilty of that crime; but yet he had one circumstance more,
that he believed would satisfy the court and the jury, that he
neither was nor could be guilty; and being demanded what that
was, he said, he had for above seven years last past been afflicted
with a rupture so hideous and great, lliat it was impossible he could
carnally know any woman, neither had he upon that account, during
all that time carnally known iiis own wife, and ofiered to shew the
same openly in court; which for the indecency of it I declined, but
appointed tlie jury to withdraw into some room to inspect this un-
usual evidence; and they accordingly did so, and came back and
gave an account of it to the court, that it was impossible he should
have to do with any woman in that kind, much less to commit a
rape, for all his bowels seemed to be fallen down in those parts, that
they could scarce discern his privities, the rupture being full as big
as the crown of a hat, whereupon he was acquitted.
Again, at Northampton assizes, before one of my brother justices
upon the Nisi prins, a man was indicted for the rape of two young
girls not above fourten years old, the younger somewhat less, and
the rapes fully proved, tho' peremptorily denied by the prisoner, he
was tlierefore to the satisfaction of the judge and jury convicted ;
but before judgment it was most apparently discovered, that it was
but a malicious contrivance, and the party innocent; he was there-
fore reprieved before judgment.
, I only mention these instances, that we may be the more cautious
upon trials of offenses of this nature, wherein the court and jury
may with so much ease be imposed upon without great care and
vigilance; the heinousness of the offense many times transporting
the judge and jury with so much indignation, that they are over
hastily carried to the conviction of the person accused thereof, by
the confident testimony sometimes of malicious and false witnesses.
HISTORIA PLACITORUxM CORONA. 637
CHAPTER LIX.
CONCERNING THE FELONY DE UXORE ABDUCTA SIVE RAPTA CUM
BONIS VIRI, SUPER STATUTUM WESTM. 2 CAP. 34.
The words of the statute are, De mulierihus abductis cum bonis
virorum siioriim habeat rex sectam de bonis sic asportatis.
This part of the statute hath affinity with what goes before in the
same statute concerning rape; and tho this learning hath been long
antiquated, yet it is of use to be known.
If a wife goes away of her own consent with another man, and
takes with her the goods of the husband, this seems to be felony
neither in the man nor in the wife, tho Dalt. cap. 108. p. 266. («)
takes it to be a felony in the man that takes her and the goods; but
it is a tresf)ass, for which at common law the husband may have an
action of trespass, quare iixoreni suarn cepit <5* abduxit cunt bonis
viri.
But if Ji. take the wife of B. against her will with the goods of
her husband, but doth not actually ravish the wife, it is felony as to
the goods, for which the party may be indicted; but as to the
taking away of the wife it is but a trespass, for which the husband,
may have his action of trespass at common law, quare uxorern
suam rapnit <^' earn cum bonis S,' catallis ad valenC , 8fc. abduxit
4' adhuc detinet, and in that action shall recover damages for the
taking of his wife and goods at common law.
But it should seem, that he mi^lit have his actfon grounded upon
the statute of fVes/m. 2. which differs only in this from a trespass at
common law, 1. That the trespass at common law is pone per
radios, S)-e. but this is ai/achies, 14 H. 6. 2 b. Again, 2. The writ
at common law is general, but this upon the statute con-
cludes contra formam statuti, quod vide Fitz. N. B. 89. f 638 "l
9 H. 6.2 a. .
But without question, if the wife were actually ravished and the
goods taken, this action lies for the husband, and he shall recover
damages for the rape as well as the goods, tho the wife were dead
or divorced after the rape. 44 ^Issiz. 13. 47 E. 3. Jiclion sur
statute 37.
. And it seems such an action was antiently in the nature of an
appeal of rape and robbery grounded upon the statute of Westm. 2.
And by the antrent law the defendant being convicted in a writ
founded upon this statute, as before, was to have judgment of death,
which appears most evidently by the ordinance of parliament. Rot.
Fart. 8 E. 2 M. 3. and afterwards sent by Mittimus into the king's
bench, T. II E. 2. Iiot. 4. London, which recites, that in such case
(a) New Edit. p. 504.
638 HISTORIA PLACITORUM CORON.^.
the defendant was not bailable, Eo quod idem implacitatits^ si
hiiJHsmndl trans2;ressione cnnvictiis faisset, siispensioni udjndicari
deheret, and therefore provides, that the defendant, if of good fame,
shall be bailed.
And according to this are the books 13 JJssiz. 5. 15 E. 3. Ulfa-
garie 49. Coron. 122. 18 E, 3. 32. a. and a case of a vicar cited to be
13 E. 2. who had his clergy in this case, but it should seem it was
intended, 1. When a rape was actually committed, vide 44 Jlssiz. 13.
and 2. When the action was grounded upon the statute, and not
barely at common law.
But the law hath been long disused to give a capital judgment
upon this writ, and in process of time nothing, as it seems, was
recovered but damages, tho the writ were brought npon tiie statute,
for rapuit is now intended of a simple taking. 9 Eliz. Bij. 256. b.
2 Co. Instit. 435. super IVestm. 2 cap. 34. 4"3 E. 3. 23. a.
And it seems the law was accordingly taken, for the statute of
6 2i. 2. cap. 6. gives an appeal to the husband for the rape of his
wife in some cases, which it needed not have done, if by the law, as
it was then used, the husband might upon such a writ convict the
party, and obtain judgment of death against him.
* And besides, it was very inconvenient, that in a civil
[639] action formed for damages, and that wants the material
terms of law to express a felony, (namely carualife?' cogno-
vit and felonicl) judgment of death should be given, and so this
course expired of itself.(l)
[1] The offence of abduction may Ije divided into two clauses— ;^rs^ the forcible taking
away of a woman on account of her fortune, with intent to marry her or defile her; and
secondly, the unlawful abduction of a girl under the age of sixteen from her parents or
guardians.
The 9 Geo. IV. c. 31. s. 19. enacts, "That where any woman shall have any interest,
whether legal or equitable, present or future, absolute, conditional, or contingent, in any
real or personal estate, or shall be an lieiress, presumptive, or next of kin to any one
having sucli interest, if any person shall, from motives of lucre, take away or detain such
woman against her will, with intent to marry or defile her, or to cause her to be married
or defiled by any other person ; every such offender, and every person counselling, aiding
or abetting such ofiender, shall be guilty of felony, and being convicted thereof, shall be
liable to be transported beyond the seas for life, or for any term not less than seven years,
or to be imprisoned, with or without hard labour, in the common gaol or house of cor-
rection, for any term not exceedmg four years." And the act repeals the 3 Hen. VII.
c. 2; o9 Eliz. c. 9; and 3 Edw. I. c. 13; 1 Geo. IV. c. 115; as also so much of 6 Rich.
St. 1. c. 6. as relates to ravishers, and to women ravished.
It is not necessary, as was the case under the prior statutes, that an actual marriage
or dejilement should take place. Under the present act, the taking or detaining, for the
purpose of lucre, coupled with an intent to marry or defile, constitutes the offence. The
taking must be against the will of the woman. It seems, liovvever, that although it be
with the will of the woman, yet if that be obtained by //Y/urf practised upon her, the case
will be within the act. Wakefield'' s case, Lancaster, March Assizes, 1827; Dene. C.
Laic, 4. It is no excuse that the woman was at first taken away with her own consent,
if she afterwards refuse to continue with the offender, because if she so refuse she may
irom that time as properly be said to be taken against her will, as if she had never given
any consent at all ; for till the force was put upon her, she was in her own power. 1 Hawk.
c. 41. s. 7; 1 Russ. 571. Moreover, the detaining against her will is an offence. It
seems also, it is not material whether a woman so taken contrary to her will, at last con-
sent thereto or not, if she were under the force at the time, for the offence is complete at
HISTORIA PLACITORUM CORON.E. 639
the time of taking-. Fullwood's case, Cro. Car, 48^; Sevcndon's case, 5 St Tr. 459;
Hawk. c. 41. s. 8.
It will be observed that the above enactment expressly makes accessaries before tlie
fact liable as principals, which was a doubtful point under the prior statutes.
The indictment must set forth that the w-oman taken away had the property, or that
she was jieiress presumptive, &c. as required by the act, in order to show defendant's
interested motives. Moulin v. Sir G. Dullison, Vro. Car. 484. '1 he place and manner
of taking must also be set forth in the proceedings. Jd. ibid. It must also be alleored,
that the taking was against her will, and that it was for lucre, {Burton v. Morris, Hob.
182; 1 Hawk. c. 41. s. 5;), and with an intent to marry or defile.
To sustain the indictment, the prosecutor should look to the averments in it, and prove
them accordingly, and in the order stated in such indictment, as that the woman was
possessed of the real or personal estate, or was the heiress presumi)tive, or nest of kin to
some one having the property required by the act. It should be proved that the defend-
ant, from motives of lucre, took away or detained the person mentioned in tlie indict-
ment, against her will, and the jury ought not to convict tlie prisoner unless they are
satisfied that the prisoner committed the offence from motives of lucre; but evidence of
expressions used by the prisoner respecting the property of the lady, such as his stating
that he had seen the will of one of her relatives, (naming him) and that she would have
£'220 a year, are important for the consideration of the jury in coming to a conclusion
whether the prisoner was actuated by motives of lucre or not. Reg. v. Barratt, 9 Car,
4- P. 387.
A prisoner was taken into custody at the house of his brother, oh a charge of abduc-
tion. When he was taken, a letter was found in a writing desk, in the room where he
and his brother were. The letter was directed to a person in the neighbourhood of the
prisoner's late residence. The police officer was going to open it, when the prisoner told
him it had nothing to do with the business he had come about; held, that the letter was
receivable in evidence on the trial of the prisoner for the abduction. lb.
The party injured, though the force continued till the time of the marriage, will be a
good witness for or against the offender, because she is not his wife de jure, and may
herself swear to the compulsion. Seveudon's case, 5 Harv. i^t. Tr. 456; Brown's case,
1 Ventr. 243; Fullwood's case, Cro. Car. 488; Rex v. Parry, 1 Hawk. c. 41. s. 13;
1 Greenl. Ev. s. 343.
But some writers seem to think that where the actual marriage was good in conse-
quence of a subsequent consent, the wife cannot be sworn; though the better opinion
seems to be that the offender should not be allowed to take advantage of liis o\yn wrong,
and that the act of marriage, which is the completion of his offence, should not be con-.
Ptrued to disqualify the witness on whose testimony he may be convicted. 4 Bla. Com.
209; 1 East, P. C. 454; Rex v. Wakefield, supra.
Punishment. — This crime is a felony, and punishable Accordingly with transportation
for life, or for not less than seven years, or with imprisonment with or without hard labour
for not more than four years. 9 Geo. IV. c. 31, s. 19. By sect. 31 of tlie same act ac-
cessaries after the fact are punishable with imprisonment with or without hard labour
not exceeding two years.
Abduction'of Girls under sixteen. — The 9 Geo. IV. c. 31, s. 20, enacts, "That if any
person shall unlawfully take, or cause to be taken, any unmarried girl being under the
age of sixteen years out of the possession and against the will of her father or mother,
or of any other person having the lawful care or charge of her; every such offender
shall be guilty of a misdemeanor, and being convicted thereof shall be liable to suffer
such punishment by line or imprisonment, or by both as the court Shall award." And
the act repeals 4 & 5 f*. 4- M. c. 8.
This provision was passed in order to meet those cases where the girl is of so tender
an age that she might be easily imposed on, and her consent obtained. It alters the law
as it stood under the 4 &. 5 P. Sf M. c. 8.
An illegitimate child appears to be within the act. Rex v. Cornforth and others,
2 Stra. 1162; better reported in Bolt, by Const. Rex v. Sweeting, 1 East, P. C. 457;
and see Moritz v. Garnhard, 7 Walts, R. 3U3, where this case is cited and approved by
Gibson, Ch. J. The mother retains her authority though she marry again, and the
assent of the second husband is not material. Ratcliffe's case, 3 Rcp.33.^
But the. statute extends only to the custody of the 7nother where the father has not
disposed of the custody of the child to others. Id.
639 HISTORIA PLACITORUM CORONA.
It seems that if tlie takings were witli tlie consent of the parent or person having- the
charge of the child, no rcstriciion could do away with the etTcct of such approval.
Calthorpe v. Arlell, 3 Mod. 169; 1 East. P. C. 457.
Under the prior act it was holden, that if a parent place a daughter under the care of
another, who by collusion marries her to liis own son, the case was not within the act
if the marriage were solemnized in a parish church, at a canonical hour, and without
any attempt at privacy. 3 Mod, 88. The principle of this case was disputed by Mr.
East, who contended that it would protect a schoolmistress in disposing of the flsmale
infants under her care in marriage, when it is manliest no power of that kind is ever
deputed, but is impliedly reserved by the parent. 1 East, P. C. 457.
And where a man by false and fraudulent representations, induced the parents of a
girl between ten and eleven years of age to allow him to take her away, such taking
away has been considered an abduction within this statute. Reg. v. Hopkins, 1 Car.
Sf M 254.
It appears to be an offence at common law to take a child from her parents or guar-
dians, or others entrusted with the care of her, by any sinister means, either by vio-
lence, deceit, conspiracy, or any other corrupt or improper practice, as by intoxication,
for the purpose of marrying her, although she herself might have consented to the mar-
riage. 1 East, P. C. 45!); Rex v. Twisleton, I Lev. 257; Rex v. Lord Ossullon, 2 Stra,
11U7; Rex v. Lord Grey, 3 St. Tr.; 3 Chit. C. L. 713; and see Mifflin v. Com. 5 H^. ^
(S. Rep. 461, opinion of Gibson, C. J.
No particular suggestions as to the framing the indictment are necessary. The usual
allegation of the girl being unmarried is sufficient. Rex v. Moore, 2 Lev, 179; Rex v.
Boyal, 2 Burr R. 832,
'I'lie prosecutor should be prepared to prove that the defendant took away the girl out
of the custody of the parent or temporary guardian; that she was under sixteen years
of age ; that the taking was against such parent's or guardian's consent, and for which
purpose any of these parties may be called.
This offence is a misdemeanor, and punishable by fine or imprisonment, or by both as
the court think fit. See the 9 Geo, IV. c. 31, s. 20. See 1 Burns's Just. 29 ed. Load.
1845, tit. "Abduction."
It appears to be the better opinion, that if a man marry a woman under age, without
the consent of her fatiier or guardian, it will not be an indictable offence at common law.
1 East, P. C.c. U.S. 9. p. 458. But if children be taken from their parents or guardians,
or others entrusted with the care of them, by any sinister means, either by violence, deceit,'
conspiracy, or any corrupt or improper practice, as by intoxication, for the purpose of
marrying them, it appears that such criminal means will render the act an offence at
common law, though the parties themselves may be consenting to the marriage. 3 Chit-
ty''s Cr. Law, 713.
And seduction may be attended with such circumstances of combination and conspi-
racy as to make it an indictable offence. A case is reported, where Lord Grey and otiiers
were charged, by an information at common law, with conspiracy and intending the
ruin of the Lady Henrietta Berkeley, then a virgin unmarried, within the age of eighteen
years, one of tiie daughters of tlie Earl of Berkeley, (she being under the custody, &c. of
her father,) soliciting her to desert her father and commit wlioredom and adultery with
Lord Grci/, who was the husband of another daughter of the Earl of Berkeley, sister of
the Lady Henrietta, and to live and cohabit with him: and further, the defendants were
charged, that in prosecution of such conspiracy, they took away the lady Henrietta, at
night, from her father's house and custody, and against his will, and caused her to live
and cohabit in divers secret places with Lord Grey, to the ruin of the lady, and to the
evil example, ifcc. The defendants were Ibund guilty, though there was no proof of any
force; but, on the contrary, it appeared that the lady, who was herself examined as a
witness, was desirous of leaving her father's house, and concurred in all the measures
taken for her departure, and subsequent concealment. It was not shown that any artifice
was used to prevail on her to leave her fither's house, but the case was put upon the
ground that there was a solicitation and enticement of her to unlawful lust, by Lord
Grey, who was the principal person concerned, the others being his servants, or persons
acting by liis command, and under his control. Rex v. Lord Grey and others, 3 St. Tr.
519. 1 East, P. C. c. 11. s. IQ. p 460.
The forcible abduction of a woman from motives of lucre, is an offence of the degree
of felony, I y the 9 Geo. IV. c. 31, which repeals several former statutes upon this subject.
See this note supra.
HISTORIA PLACITORUM CORONA. 639
Upon an indictment for abduction, on the 9 Geo. IV. c. 31. s. 19, it must be proved
that the prisoner took away the woman from motives of lucre, but his expressions rela.
tive to her property are evidence that he was actuated by such motives. Upon an in-
dictment for having feloniously, and from motives of lucre taken away and detained
M. E. ag^ainst her will, she having a future interest in certain personal property, con-
taining a count with intent to marry, and a count with intent to defile, it appeared that
the prisoner had taught M. E. riiusic, and had paid his addresses to her, which w^re
favourably received by her, but which her relatives insisted upon her breaking off, and
by their advice she wrote to the prisoner to tell him tliat tlie intimacy must cease for-
ever. One day when she was walking out, the prisoner came in a gig, got out, came
behind her, and having placed his hand on her shoulder, carried her in his arms to the
gig, she struggling and screaming all the time he was doing so. He then drove away
with her, but was pursued and overtaken at a distance. She was cross-examined with
a view to show that she had consented to the abduction. M. E. would, on her attainiiif
the age of twenty-one, be entitled to the sum of £2100, and the prisoner had said that he
knew that she would be entitled to £200 a year. It was contended that if the prisoner
carried her off even against her own consent, to make her his wife from affection to her
person, and not as the means of getting at her property, the offence was not proved. In
Hex V. Wakffield^ cited supra, the parties had no previous intimac}', and therefore all
inducement to the act arising from real passion and affection, was out of the question,
and the abduction in that instance, as well as almost every other which had been the
subject of penal inquiry, could be accounted for on no other grounds than those of cold
and sordid calculation to get possession of a lady's property by first obtaining possession
of her person. Fiirke, B. " I agree with the learned counsel tor the prisoner, that there
is a great distinction between this case and the case of Kex v. Wakefield, as there was
not in that case' any previous intimacy between the parties. I also agree with him as
to his argument that if all the other requisites of the statute constituting the offence are
satisfied, and the evidence of the motive being the base and sordid one of lucre, is unsatis-
factory or insufficient, it will be your duty to acquit the prisoner of the charge of felony.
It is clearly made out that Miss Ellis is entitled to personal property, and that tli'e
prisoner took her away with the inlention of marrying her; and I think that the other
count may be entirely laid out of your consideration, as there is no evidence of it what-
ever. You will therefore say, whether the prosecutrix, being a lady entitled to property,
the prisoner either took her away or detained her against her will with intent of marrying
her but for the base purpose of getting possession of her property; and if you come to the
conclusion that that was so, it will be your duly to find him guilty of the felony. With
respect to the motives of the prisoner, evidence has been given of expressions used by the
prisoner respecting the property of Miss Ellis, such as having told one of the witnesses
that he had seen Mr. WhitweWs will, and that she would be entitled to .£200 a year.
These expressions are important for you to consider, in order to your forming a judg.
ment whether the prisoner was actuated by motives of lucre or not. Unless you are
.■satisfied that such a motive prompted him to take away the prosecutrix against her will,
-he is entitled to be acquitted of the felony, and you will then consider whether he used
any force to her person in taking her away, and took her away against her consent; for
Jf he did, and he is not guilty of the felony, you may under the present indictment con-
vict him of the assault." Reg- v. Bnrratt, 9. C. Sf P. 387, cited supra.
This case also sliows that if the prisoner be acquitted of the felony, he may be con-
victed of anassault under the 1 Vict. c. 85. s. 11, if he used force to the person of the
female in taking. her away. I Russ on Crimes, 701, 702. See also the remarkable case
•of Rex V. Gordon, coram Lnwrence J. Oxford Lent Ass, 1804, fully reported in 1 Russ.
on Crimes, 704. 2d Land, ed.
VOL. I. — 55
639 HISTORIA PLACITORUM CORONA.
CHAPTER LX.
OF FELONY BY PURVEYORS TAKING VICTUALS WITHOUT WARRANT.
By the statute of Articuli super Cartas, cap. 2. It is enacted, Si
nul face prises sans garrant, & les emport encountre volimt de celui,
a qe les biens sont, soit maintenant arrest per le vill, on le prise serra
fait, & amesne al prochein gaol : Et si de ceo soit attaint, soit fait de
lui, come de laron, si la quantite de biens le demand.
If t^. having no commission take goods by pretense of a commis-
sion as purveyor, and the party not knowing that he hath no com-
mission sell and suffer him to take it, yet this is felony; but if the
owner knew he had no commission, and yet willingly sell it to him
as a purveyor, and he take and carry it away, this is not a carrying
away against the consent of the owner to make a felony within this
statute. 2 Co. Instil, p. 546. super Jirticulls, cap. 2.
This point of felony is confirmed by the statute of 18 E. 3. cap. 7.
and 4 E. 3. cap. 4-
Afterwards by the statute of 5 E. 3. cap. 2. and 25 E. 3. cap. 1.
" If a purveyor shall take goods above the value of twelve-pence
without testimony and appraisement of the constable, or without tal-
lies given, this is also felony."
Again, by the statute of 25 E. 3. cap. 15. "If a purveyor
[640] take sheep and their wool betwixt Easter and Midsummer,
it is felony, if he shore them at his own house."
Again, by the statute of 36 E. 3. cap. 2. " If any purveyor ta'ke
goods or carriage, otherwise than is contained in their commission,
it is felony."
But in all these felonies the offender is not ousted of clergy, but he
shall have it : vide Co. P. C. cap. 24.
But these acts of parliament and the punishment of purveyors is
now out of date, because by the statute of 12 Car. 2. cap. 24. all
purveyance is taken away.
Only by two subsequent acts, namely 13 Car. 2. cap. 8. and 14
Car. 2. cap. 20. there is a special purveyance of carriage settled for
the king's household, and for the navy and carriage of ordnance;
but the statute of Articiili super cartas, and the other statutes
making felony in case of undue purveyance do not concern this
new established purveyance, because settled in another way; and
therefore I shall say no more touching this matter.
HISTORIA PLACITORUM CORONA. 640
CHAPTER LXI.
CONCERNING THE NEW FELONIES ENACTED IN THE TIMES OF E. 2.
E. 3. AND R. 2.
In the times of those kings there were but few new felonies
enacted other than those touching purveyors, whereof in the former
chapter.
By the statute of 1 E. 2. De frangentibus prisonam^ the law
was settled in that point, whereof I liave said sufficient supra,
cap. 54.
By the statute of 14 E. 3. cap. 10. "If a gaoler or under keeper
by too great duress of imprisonment, and by pain make
any prisoner in his ward to become an appellor against his ('641']
will, and thereof be attaint, he shall have judgment of life
and member,"
These words in any act of parliament Eii judgment de vy Sf
Tnember create a felony.
This act extends to a gaoler de facto, tho he be not a gaoler
de jure. ^
The offender hath the benefit of clergy: vide Co. P. C. cap. 29.
p.9\. touching this felony.
By an act Hot. Par. 17 E. 3. n. 15. but not printed, the importa-
tion of false and evil money is prohibited under pain of life and
member, and the exportation of coin or bullion prohibited under
pain of forfeiture, and if the searcher be of confederacy with the ex-
porter, it is enacted to be felony in the searcher.
If it be said this act was needless to make importation of false
money felony, because declared treason by the statute of 25 E. 3.
the answer is obvious. By the act of Vl E. 3. before-mentioned
licence was granted to Dutch merchants and others to import their
own coin so it were as good as sterling, and that, if they pleased,
the merchants might trade between themselves with that foreign
money; and it was necessary in respect of that foreign money to
impose a new penalty upon the importers of false money of that
kind, because that foreign coin was not within the statute of
25 E. 3.
But this seems to be but a temporary law during that special
intercourse between the Efiglish and Dutch, and besides by sub-
sequent statutes the penalty of treason is annexed to the importation
of counterfeit coin made current by proclamation : guod vide supra,
cap. 20. p. 225.
By the statute of 27 E. 3. cap. 3. of the staple, the exportation of
wools, wool-fells, leather or. lead by any English, Irish, or Welch-
man, is prohibited under pain of loss of life and member, and for-
641 HISTORIA PLACITORUM CORONA.
feiture of lands and goods, («) but this was repealed by the statute
of 36 E. 3. cap. 11. whereby it was enacted, that merchants deni-
zens may pass with their wool as well as foreigners without being
restrained.
But yet this was not full enough, and therefore by the
r 642] statute of 38 E. 3. cap. 6. there was a fuller repeal of the
statute of 27 E. 3. as to the point of felony, yet the for-
feiture of lands and goods continued upon merchants denizens, and
the statute of the staple was confirmed in all points by 38 E. 3.
cap. 7.
But by the statute of 43 E. 3. cap. 1. the staple of Calais was
abolished, yet by 14 R. 2. cap. 5. exportation of wool, wool-fells,
leather and lead are prohibited to denizens under pain of forfeiture
of them.
By the statute o( 21 E. 3. de provisorihiis, cap. 5,ingrossingof Gas-
coign wines made felony, but that penalty repealed by the statute
37"^. 3. cap. 16.
So that these statutes stand now repealed.
But yet by the statute of 18 ^. 6. ccrj). 15. the carrying of wool
or wool-fells out of the realm to other places than to the staple of
Calais without the king's licence is felony, excepts wools carried to
the streights of Morocco.
This statute is supposed by my lord Coke, P. C. cap. 32 to be in
force, but that being doubted, because the staple of Calais then in
use hath been long since abolished, a new provision and a better is
made by acts of this present parliament.(A)
But whether that act be in force or not, the offender was not there-
by excluded of the benefit of clergy.
By the statute of 34 E. 3. cap. 22. the concealing and taking away
of an hawk was two years imprisonment; but by the statute of 37 E.
3 cap. 19. the stealing of a faulcon,tercelet, lanner, or laneret is made
felony.
See the commentary Co. P. C. cap. 34. where it is declared, that
this act extends only to faulcons, and those of that kind.
The proof intended by this act is not by jury but by circumstances,
as varvels, S,'c.
The offender is within benefit of clergy.
As to the laws in the time of Richard II.
6 A'. 2. cap. 6. concerning the punishment of rape, de quo satis,
cap. 58.
7 R. 2. cap. 8. of purveyors, de quo supra, cap. 60.
By the statute of 13 ^. 2. cap. 3. <' If any man bring
r643 3 or send into this realm or the king's power any summons,
sentence of excommunication against any person for the
cause of making motion, assent or execution of the statute of provisors,
he shall be taken, arrested, and put in prison, and forfeit all his lands,
tenenients, goods and chattels for ever, and incur the pain of life and
(a) Co. P. C. p. 95. (h) 12 Car. 2. cap. 32. 13 ^ 14 Car. 2. cap. 18.
HISTORIA PLACITORUM CORONiE. 643
member; and if any prelate make execution of such summons, sen-
tence or excommunication, his temporalties shall be taken and abide
in the king's hands till due redress made.
" And if any person of less estate than a prelate makes such exe-
cution, he shall be taken and arrested and imprisoned, and make fine
and ransom by the discretion of the king's council."
The bringing in of bulls of this nature is against the common law,
and sometimes antiently punished as high treason, vide Co. P. C.
cop. 36. 8)' libros ibi.
But now by the statute 13 Eliz. cap. 2. the offense as well in the
bringers in, as executors of these bulls, 4*c. is made high treason, as
well in persons ecclesiastical as temporal.
There is nothing else in these kings reigns that enacts a new felony,
only some statutes directing the process and jurisdiction, whereby
felonies may be tried, as 13 .ff. 2. cap. 2. of the constable and mar-
shal, &'C.
CHAPTER LXII. [644]
CONCERNING THE NEW FELONIES ENACTED IN THE TIMES OF H. 4.
H. 5. H. 6. E. 4.
By the statute of 5. H. 4. cap. 4. it is ordained, "That none from
thenceforth shall use to multiply gold or silver, nor use the craft of
multiplication, and if any do, he shall incur the pain of felony in this
case."(a)
. And the reason of this act was not because they thought the real
transmutation of metals into gold or silver was feasible, but the reason
is given in the petition of the commons. lioL Car. 5. H. 4. n. 63.
Car plusers homes par colmir de cest multiplication font faux
rtiony a ^rand deceit du roy 4' damage de son people: vide tamen
Co. P. C. cap. 20. dispensations granted to particular persons by 34
S,' 35 H. 6. for the using of this art with a tion obstante oiihe statute
of 5 H. 4.
The offender is to have his clergy.
And altho the statute mentions not accessaries before or after, yet
this statute making the fact felony doth consequentially subject acces-
saries before and after to the penalty, tho this be made a qusere. Dy.
88. in Eden^s case; yet it seems now settled according to the opinion
(a) The offense prohibited by this act was not the extracting g'old or silver out of lead
or other metals, which is now known by the name of refining-, for that is not the muili-
plication of gold or silver, but only a separation thereof from the coarser metal, but the.
design of the act was to prohibit the transmutation of one metal into another, which was
pretended to be done by the pliilosopher's stone or elixir, whereby great numbers were
bubbled and cheated; but however, because some persons were (groundlessly) afraid to
exercise the art of smelting and refining metals, lest they should fall under the penalty
of this statute, it was therefore repealed by 1 W. Sf M. cap. 30. provided that the gold or
silver extracted by the said art be carried to the Tower of London for the making of
monies, and be not otherwise disposed of.
644 HISTORIA PLACITORUM CORONiE.
of my lord Coke, P. C. cap. 20. that there may be accessaries to this
new felony before and offer.
By the statute of 5 H. 4. cap. 5. cutting the tongues or
r 645 ] putting out the eyes of the king's subjects of malice pre-
pensed is enacted to be felony.
This was extended to other dismembring, as cutting off ears, by 37
H. 8. cap. 6. but by an act of this present parHament(6) this and
some other dismembrings are made felonies out of the benefit of the
clergy.
By the statute of 3 H. 5. cap. 1. "If any person do make, buy,
coin, or bring into the kingdom Galli-ha/f-pence, Suskins or Dod-
kins, to sell, or put them in payment in this realm, it is felony."
And by the statute of 2 H. 6. cap. 9. If any man pay or receive
the money called Blanks, it is also felony; but both these are with-
in clergy, and by the whole disuser of these coins these statutes are
of little use.
By the statute of 3 H. 5. cap. 3. it is enacted, "That proclamation
shall issue, that all Britons depart out of the realm before the feast
of St. John Baptist next, upon pain of loss of life and member."
But this was but a temporary law and expired.
By the statute of 3 H. 6. cap. 1. it is enacted, " That no congrega-
tions or confederacies be made by masons in their assemblies, where-
by the good order of the statute of Labourers is violated ; and they
that cause such assembhes to be holden, shall be adjudged felons."
But the statute of Labourers being repeald by the statute of
5 Eliz. cap. 4. this law is consequentially repeald. Co. P. C. cap. 35.
j». 99.
By the statute of S //. 6. cap. 12. it is enacted, " That if any record
or parcel of the same, writ, return, panel, process, or warrant of
attorney in the king's courts of chancery, exchequer, the one bench
or the other, or in the treasury, be wilUngly stolen, taken away, with-
drawn, or avoided by any clerk, or by any other person,
r 646 ] by cause whereof the judgment shall be reversed; that such
stealer, taker away, withdrawer, or avoider, their procura-
tors, counsellors, and abetters thereof indicted, and by process there-
upon made, duly convict upon their own confession, or inquest there-
upon taken of lawful men, half whereof shall be Of men of any court
of the same courts, and the other half of others, shall be judged for
felons; and that the judges of the same courts, or of the one bench
or the other, have power to hear and determine such defaults before
them, and thereof to make due punishment, as is aforesaid."
In the consideration of this statute, it will be convenient to exa-
mine, 1. How the law stood in reference to the matters abovesaid
(b) 22 Sf 23 Car. 2. whereby the cutting out or disablinor the tongue, putting out an
eye, slitting the nose, cutting off a nose or lip, cutting olTor disabling any limb or mem-
ber, if done with an intention to maim or disfigure, is felony without benefit of clergy;
upon this statute Coke and Woodburne were convicted and executed for slitting the nose
of Mr. Crispe, 8 Geo. I. See State Tr. Vol. VI. p. 212.
HISTORIA PLACITORUM CORONA. 646
before this act made. 2. What is the import of the several parts of
this act.
At the common law, the undue rasure, or embezzling of a record,
was a great offense, for which even a judge himself was punishable
by fine and imprisonment, 2 U.S. 10. //en^/^ww a judge was fined
eight hundred marks for rasing the record of a fine of thirteen shil-
lings and four pence imposed upon a poor man, and reducing it to
six shillings and eight pence.(c)
By the statute of Westm. 1. viz. 3 E. I. cap. 29, it is enacted,
"That if any Serjeant, pleader or other, do any manner of deceit or
collusion to the king's court, or consent to it in the deceit of the court,
or to beguile the court or the party, and be thereof attaint, he shall
be imprisoned for a year and a day, and from thenceforth shall not
be heard to plead in that court."
And if he be no pleader, he shall be imprisoned in like manner,
and if the trespass requires greater punishment, it shall be at the
king's pleasure. (fl')
Upon this act it was that Robert de Greshope a common
attorney was imprisond for a year and a day, and banished [ 647 ]
the court of common pleas, for embezzling a part of a
record, ?;/z, 7! 19 E. 1, Rot. 57. in dorso, C. B. mentiond in Co.
P. C.cap. Id. p. 71. vide simile. H. 22. E. 1. Rot. 33. in dorso,
Cant Coram Rege.{*)
T. 5 E. 3. Rot. 13. in dorso. Rex B. R. Thomas of Carleton
convict of the rasure of the word et in a writ, is committed to the
marshal, <§• inhibitum est ei, ne amodo deserviat in officio sive ser-
vitio vicecont\ periculo quod incumbit, and this it seems was upon
the same act of 3 E. l.(e)
If a clerk had made a misentry of record, the judge, before whom
it was, might, ore tenus, rectify that misentry, tho a considerable
time after.
M. 24 E. 3. Rot. 41. Kane. Rex. it was presented before Richard
de Kelleshull, and his fellow justices of oyer and terminer, 18 E. 3.
that one fVaresius atte Capele had trespassed in the free warren of
the earl of Huntingdon, and the abbot of Battel, and he was con-
victed by his own confession, and the clerk had entred the fine ten
shillings. The record being sent into the king's bench, Richard de
Kelleshull came into court, S," inspecto irrotulamento, said. Quod
(c) Henghatn was a judge in the reign of Edward I. and his fine was employed for
building a clock-house at Westminster, and furnishing it with a clock, which made
Southcot (one of the judges of the king's bench in the reign of queen Elizabeth,) when
prest by the chief justice to consent to a rasure of the roll, say, that he would not do it,
for he meant not to build a clock-house. Co. P. C, p, 72.
{d) 2 Co. JnstU. 213.
(*) This was the case of Giles de Berton, who was convict eo quod scienter procuravit
omissionem did in processu Sf recordo coram justitinriis de banco, quod coram rege venire
fecit; on account of which omission the judgment of the court of common pleas had been
reversed,^™ deceplione pradicta committitur marescallo, Sf postea Jinem fecit cum domino
rege pro 10 solidis.
(e) It does not appear from the record, whether the judgmentwas grounded on statute
3 E. 1. or on the common law.
647 HISTORIA PLACITORUM CORONA.
clericiis siius fiiiem ilium surreptive & contra recordum suum intra-
vit, & dicit quod finis ille assessus fuit per ipsum & socios suos pro
qnolibet ariiculo ad decern libras, & sic finis ejus ejusdem fVaresii
summatus fuit ad viginti libras, & illud expresse ore tenus hie recor-
datur, and prayed for the king, quoa finis ille secundum recordum
suum intrelur in rotulis extractorum, and it was accordingly entred ;
so that a judge of record is as it were a living record, and controuls
the entry of the clerk.
In the time of Jiichard II. there happened two great complaints
against the judges and clerks for the misentry of a record: the one
Rot. Par. 7 R. 2. pars 1. n. 57. for the lady Spencer, who
[648] pleaded to a Quare Impedit brought against her by the
king; but at the end of Trinity term last, the record of
her plea was rased in a material place to her great disadvantage,
and the judges refused to amend it, because after the term: the
answer was,
Tiel plee come les justices voillent recorder qe ent estoit pledez,
soit de novel entre en le lieu de la rasure, nient contresteant qe le
terme, en qel le dit plee fuit pled, soit ja pass, & roy voit qe celui, qe
iist la rasure, soit punish pur son malfait.
The other was Rot. Par. 7 R. 2. pars 2. n. 20. at the complaint of
the prior of Mountai^ue, That whereas in a writ of right brought
against him he prayed in aid of the king, and was ousted of aid by
the court, who entred qusesiium est a Priore, si quid, SfC. the judg-
ment that was given was dictum est Priori, quod respondeat sine
tntxilio; and accordingly the judges came into parliament and
agreed, that new entries should be made, as was desired by the
prior, and thereupon the prior brought a writ of error in parliament
upon the record so amended.
These occurrences did the next parliament following, viz. 8. R. 2.
draw on the act of 8 R. 2. cap. 4. against the rasing of records, and
the false entring of pleas, whereby it is enacted, "That if any judge
or clerk be of default (so that by the same default ensueth disherison
of any of the parties) sufficiently convict before the king and his
council, in that way that the king and his council shall deem rea-
sonable, within two years after the default made, S^c. he shall be
punished by fine and ransom at the king's will, and satisfy the
party."
Thus this act settled it, and so it stood till S H. 6. but in this act
there occurred some inconveniences. 1. The way of trial before the
king and council was difficult and inconvenient. 2. The punish-
ment as to the clerks seemed too gentle. 3. It did not meet with the
inconveniences of stealing records. 4. It was found of great incon-
venience to the due administration of justice; for the judges have
often occasion upon their own memory of the record, and some-
times upon examination, to rectify undue entries, and were
r 649 ] required in some cases to amend the m'isentries, or small
mistakes in records by the statute of 14 E. 3. cap. 6. and
HISTORIA PLACITORUM CORONA. 649
other statutes, which could not be done without rasures and altera-
tions of the record and roll.
, To remedy the latter of these inconveniences in the beginning of
this very statute of 8 H. 6. cap. 12. and farther by the statute of
8 H. 6. cap. 15. a liberal power is given to the justices to amend
records, in the pursuance of which power they were by these act*
of S H. 6. protected against the dangers and severhy of the act
of R. 2.
And then this act proceeds to inflict punishment of felony against
clerks and others, that willingly avoid records, «5'c. which penal law-
did not at all extend to judges upon three apparent reasons. 1. Be-
cause by this vetY law, judges had power upon examination to
amend records. 2. Because the judges of the several courts are
made the judges to hear and determine these offenses. And, 3. This
clause not mentioning judges (as that of 8 R. 2. did,) but beginning
with clerks and other persons, judges shall not be included, who are
superior officers, upon the reason given in the 2 Co. Rep. casus
archiepiscopi Cant\ and accordingly it is agreed by my lord Coke,
F. C. cap. 1 9. p. 72.
Now I come to the consideration of the statute itself, wherein my
lord Coke, P. C. cap. 19. hath made a full collection, to which I can
add little.
1. It extends only to the four great courts of Westminster, and
not to inferior courts.
But as to the English part of the court of chancery, it extends not,
because as to the English proceeding it is no court of record.
But yet it seems it doth extend to those processes, that issue out
of that court under the great seal, tho they be processes in order to
the Enqlish proceeding,"as siibpitna's, attachments, commissions to
examine witnesses, because these being under the great seal, are
matters of record.
2. The Treasury is added, which doth not only extend to the
records of the treasury of the courts of king's bench and common
pleas, but also to the records in the receipts of the exche-
quer, under the custody of the treasurer and chamberlains [ 650 ]
of the exchequer: and also to the records in the Tower, ^iwd
in the chapel of the rolls, yea, and the records in the custody of the
clerk of the lords house in parliament, (but not to the journals,) for
those are the king's treasuries of records of the highest moment.
3. The offenses mentioned are four, stealing, carrying away, with-
drawing, or avoiding; and this last word avoiding is comprehensive,
for it extends to rasing, cutting off, clipping, yea, and cancelling a
record.
4. But these must be done voluntarily, as well as felonicl, and
both these words must be contained in the indictment upon this
statute.
A rasing or cancelling of a record by the ordei: of that court in
whose custody the record is, is no felony in him that doth it, nor ia
650 HISTORIA PLACITORUM CORONA.
the court that commands it, for the court hath a superintendence, as
well over the record as over the clerks.
5. It extends not to judges for the reasons before given.
6. It must be such an embezzling or avoiding of the record, by
reason whereof a judgment is reversed, and therefore it extends only
to judicial records in any of those four courts or treasuries, be the
judgment in a case criminal or civil.
And therefore it is equally an offense against this statute whether
the avoiding, 8f-c. be after judgment given or before, in case judg-
ment be given after the offense; and it is held, that an outlawry, tho
it he per judicium coronalorum, is a judgment within this statute.
If the judgment be not actually reversed by sucli embezzling, SfC,
yet if it be reversible by reason thereof, it is within this statute,
2 R. 3. 10.
And it extends not only to a reversibleness by writ of error, but a
reversibleness or avoidableness of judgment by plea, by reason of such
embezzling, <5'C. is within this statute, 2 R. 3. 10.
But what if the ofJense of embezzling, avoiding, or rasing, be
such as goes in affirmance of the judgment, and makes it
r 651 l good, which otherwise were reversible, if it stood as before
that offense committed? tho this in some cases be punishable
by the court as a misdemeanor in the clerk, yet it seems not felony
within this act.
And the common practice at this day is, if the Venire fucia,^ or
Dis/rinffas be erroneous, and would make the judgment erroneous,
if filed, hut being not filed, is aided by tlie statute of IS E/iz. cap. 14.
the court never compels the clerk to file such writs after verdict, much
less punishes them for not doing it.
But if .^. B. be sued by the original to the exigent and outlawed,
and afterwards the exigent is made C B. and the original is also
made C. B. to make all agree, this is felony as well in the clerk that
raseth the original, as him that raseth the exigent. 2 R. 3. 10.
7. If the oti'ense riselh in two counties, then it is dispunishable.
2 R. 3. 10.
S. The trial is to be one half by the clerks of the court, and the
other half by others.
9. The judges of the court of the one bench and the other are by
this statute enabled to hear and determine it without any other com-
mission, and each of these courts have a concurrent jurisdiction, and
where it first begins there it is to proceed.
So that it seemeth, if the offense were in the record of the king's
bench, the justices of the common bench may hear and determine the
offense, if it be there first indicted.
This power is to hear and determine; the consequence whereof is,
that it enables these respective courts to take indictments of these
offenses; this, tho it be intrinsical to the court of king's bench, (for
they swear a gragd inquest and take indictments every term,) yet it
is a new power in the comiuon bench.
And altho the trial of the oflense is to be by a party-jury of clerks
HISTORIA PLACITORUM CORONA. 651
and others, yet the indictment may be taken either of clerks alone, or
of foreigners alone, or of both, for it is only the trial that is to be by
a party-jury.
In the case o{ Danby and others, 2 R. 3. 10. these points
were resolved upon this statute, 1. If the offense be entirely [ 652]
committed in the county where the court of king's bench or
common pleas sit, it may be tried, heard and determined by either
court without a special commission, for the act of parliament is a
commission. 2. If it be committed entirely in a foreign county, or
be committed in the county where the court sits, and then the court
remove into another county, it must be heard and determined in the
county where the fact was committed, and cannot be indicted, heard
or determined in another county than where it was done. 3. That
therefore in that case there must be a special commission to the jus-
tices of the one court, or to the justices of the other, to hear and de-
termine the offense in that other county, and then they may there
take the indictment and try the offender by a party-jury according to
the act ; but it seems, if the indictment be taken by virtue of such com-
mission, it may be removed into the king's*ench by Certiorari, if
indicted before them, and then tried according to the direction of the
act. 4. If the offense were committed in London, where, by privi-
lege and charter of the city, the mayor is to be one in commission
and oixhe quorum; yet in this case the mayor must not be named in
the commission, but only the justices of one of the courts. 5. If the
offense be mixt, and partly in Middlesex, where the court sits, and
partly in London, or any other foreign county, the felony is dispun-
ishable, and so it remains at this day, notwithstanding the statute of
2 Sf 3 E. 6. cap. 24. 6. But yet in this case the offender committing
part of the offense in Middlesex, may be indicted of misprision of
felony in Middlesex, or committing part of the offense in London,
may be indicted of misprision of felony in London, and thereupon
fined and imprisoned: and accordingly it was done by the advice of
all the judges, and the parties fined, for every felony includes mis-
prision.
And yet observe, 1. The felony was one entire felony committed
in two counties, and therefore neither enquirable nor determinable in
one county, for the jury of that county cannot take notice
of part of the fact committed in another, and yet the mispri- [ 653 J
sion of that felony was inquirable and punishable in either
county, where but part of the felony was committed, and yet the
jury in that case must take notice of the entire felony, part whereof
was committed in another county. 2. Altho the felony itself is by
the act limited to special jurisdiction and manner of trial, yet the mis-
prision of that felony was tried by a common jury, and before the
general commissioners o{ oyer and terminer in the county where the
offense w|^ committed. In this offense the offender hath the benefit
of clergy.
11 //". 6. cap. 14. It was made felony for three years to ship mer-
chandizes of the staple in any creeks; but this is expired.
653 HISTORIA PLACITORUM CORONA.
18 FT. 6. cap. 15. Exportation of wools, other than to the staple
of Calais or straights of Morocco, felony. F'ide supra, cap. 61.
p. 642. (§' infra.
18 H. 6. cap. 19. Soldiers departing from their captain without
license, felony. This, together with those other statutes, of the same
kind, as 7 H. 7. cap. 1. 3 H. 8. cap. 5. I shall refer to the statute of
2'E. 6. cap. 2. where I shall take the whole matter of soldiers de-
parting into consideration.
28 //. 6. cap. 4. It is felony to take a distress in the counties and
royal seignories in Wales or dntchy of Lancaster, and carry them
out of the said counties, dutchy or seignories, ^-c. saving for the lords
of fees distraining. This act was to continue only five years, and
then expired.
33 H. 6. cap. 1. If houshold servants, after the death of their mas-
ter, violently and riotously take and spoil the goods of their master,
and the same distribute among themselves, upon complaint made by
the executors, or two of them, to the chancellor, the chancellor with
the advice of the chief justices and the chief baron, or two of them,
shall direct writs of prOTlamation to the sheriff for the offenders to
appear in the king's bench upon some day certain, fifteen days at
least after the proclamation.
And if he appear, he shall be committed to answer the
[6541 suit of the executors by bill or writ; but if he appear not at
the return of tlie writ, after proclamation so made, he shall
be attaint of felony.
Tliis statute extends to one executor, if but one, and to adminis-
trators, if no executors, to a lord keeper of the great seal, when no
chancellor.
This was a process much in use in case of great offenses, especially
about this king's reign, to convict men sometimes in civil offenses,
some'times in cases criminal upon default of appearance at the return
of the proclamation. Vide Slat. 5 H. 4. cap. 6. 11 //. 6. cap. 11.
But this attainder doth not exclude the offender from clergy. Co.
P. C. cap. 43. p. 104.
12 E. 4. cap. 5. All wools, woolfells, morling and shorling of
Westmoreland, Cumberland, Northumberland, and Durham, to be
shipped out, shall be shipped at Newcastle upon Tine, and thence to
Calais or Middleborough, there to be stapled and uttered, and all
other wools, woolfells, morling and shorling, to be conveyed only to
the staple of Calais; if any attempt to the contrary, it shall be felony,
saving the king's prerogative to license transportation elsewhere.
This act to continue for five years only, and so it expired.
17 E. 4. cap. 1. If any shall carry or cause to be carried out of
this realm or Wales, any manner of money of the coin of this
realm, or any other realm, plate, vessel, mass bullion, jewels of gold
wrought or unwrought, or silver without the king's licej^e, except
the persons dispensed with by the statute of 2 H. 6. cap. 6. it shall
be felony.
'This act was to continue only for seven years.
HISTORIA PLACITORUM CORONA. 654
And by the act of 4 H. 7. cap. 23. it was re-enacted again to con-
tinue twenty years; and by the statute of 1 H. S. cap. 13. it was
continued till the next parliament, (/) and then discontinued : but
by the act of 7 E. 6. cap. 6. it was revived for twenty years, and
then expired ; so that at this day the exportation of gold and silver
is not felony, but remains only under the penalty of those statutes
that prohibit its exportation under pains of forfeiture; for
the act of 17^5. 3. did not make exportation felony.(o-) [655]
And having this occasion I shall here once for all give an
account of the laws in force against the exportation of money and
bullion.
By the statute of 9 E. 3. cap. 1. None are to carry any sterling
out of the realm of England, nor silver in plate, nor vessel of gold,
or silver, upon pain of forfeiture of the same, that he shall so carry,
without the king's license; this is confirmed in substance by 38 E. 3.
cap. 2. 5 R. 2. cap. 2.
By the statute of 2 H. 4. cap. 5. If any gold or silver be found in
the keeping of any upon his passage over sea, in any ship or vessel
to go out of any port or creek without the king's license, it shall be
forfeit, saving his reasonable expenses.
Merchants strangers to lay out one half the proceed of their mer-
chandize upon English merchandize, and may carry over the other
moiety.
By the statute of 4 H. 4. cap. 15. All merchants, and strangers,
and others, that sell merchandizes here, shall lay out the money
thereby arising in other merchandizes of England, to carry the
same without carrying any gold or silver in coin, plate or mass out
of this realm, upon pain of forfeiting all the same, saving always
their reasonable expenses.
This act is still in force, and received a farther confirmation by the
statute of 5 H. 4. cap. 9. 9 H. 5. cap. 1.
2 H. 6. cap. 6. No gold or silver to be carried out of the realm
contrary to the former statutes, except for payment of the king's sol-
diers, upon pain of forfeiture of the value of the sum so carried, one
fourth part to the discoverer, except ransom of prisoners, and money
that soldiers carry for their necessary costs, and for horses and slieep
bought in Scotland.
3 H. 7. cap. 8. All foreign merchants shall employ their money
received in ports, ^'C. upon merchandize or commodities of this
real, the proof to lie upon the merchant, upon pain of forfeiture of
all his goods, and a year's imprisonment. This clause of the statute
of 17 ^. 4. made perpetual.
19 //. 7. cap. 5. None to convey any coin, bullion, or
plate, above the value of 6.?. Sd. out of this realm into Ire- [ 656]
iland, nor convey such bullion, plate or coin into any ship,
boat or other vessel, upon pain of forfeiture thereof, and making fine
and ransom at the king's will.
(/) But not as to the penalty of felony, for that is excepted in the act.
(g) Except in the searcher, if he confederated with any to export it.
656 HISTORIA PLACITORUM CORONA.
So these several statutes lie in the way of transportation of bullion
or coin, tho the act of HE. 4. and other acts making it felony are
now expired.(/^)
CHAPTER LXIII.
CONCERNING THE NEW FELONIES ENACTED IN THE TIMES OF R. 3.
H. 7. H. 8. E. 6. AND QUEEN MARY.
I FIND no new felony enacted in the short reign of H. 3.
By the statute of 1 H. 7. cap. 7. "At every time as information
shall be made of any unlawful hunting in any forest, park or war-
ren by night, or with painted faces, to any of the king's council, or
to any of the justices of peace in the county where any such hunting
shall be had, of any person so suspected thereof, it shall be lawful
to any of the same council or justices of peace, to whom such infor-
mation shall be made, to make a warrant to the sheriff of
[ 657 3 the county, constable, bailiff, or other officer within the
same county, to take and arrest the same person or per-
sons, of whom such information shall be made, and to have him or
them before the maker of the said warrant, or any other of the
king's said council or justices of peace of the said county, and that
the said counsellor or justice of peace, before whom such person or
persons shall be brought, by his discretion have power to examine
him or them so brought of the same hunting, and of the said doers
in that behalf; and if the same person wilfully conceals the same
hunting, or any person with him defective therein, that then the
same concealment be against every person so concealing, felony;
the same felony to be inquired of and determined as other felonies
within this realm have used to be; and if he t/ioi confess the truth,
and all that he shall be examined of and knoweth in that behalf,
that then the said offenses by him done be against the king our
sovereign lord but trespass fineable, by reason of the said con-
fession, at the next sessions of the peace to be holden for the same
county by the king's justices of the same sessions to be there
sessed; and if any rescous or disobeyance be made by any person,
the which so should be arrested, so that the execution of the same
(h) By 13 Sf 14 Car. 2. cap. 31. The melting down the silver money of this realm is
prohibited, on pain of forfeiting it, and double tlie value; and by 15 Car. 2. cap. 7. it is
lawful to export foreign coin or bullion, provided an entry be made thereof at the custom,
house: but by 6 ^ 7 W. 3. cap. 17. and 1 Sf 8 W. 3. cap, 19. before the same be shipt, it
is necessary there should be a certificate from the lord mayor and court of aldermen of
London, tliat oath had been made before them by tlie owner of the said bullion, and by
two or more credible witnesses, that the said bullion, and every part thereof, is foreign
bullion, and that no part thereof was the coin of this kingdom, or clippings thereof, or
plate wrought within this kingdom.
HISTORIA PLACITORUM CORONA. 657
warrant thereby be not had, then the same rescous and disobeyance
be felony inqnitable and determinable, as is aforesaid ; and if any
person be convict of such hunting with painted faces, vizors, or
otherwise disguised, to the intent he should not be known, or of
any unlawful hunting in the night, then the same person so convict
to have such punishment, as he should have, if he were convict of
felony. "(rt)
My lord Coke, P. C. cap. 21. hath given us the whole learning of
this statute, viz.
1. The hunting with vizors or painted faces in the day-
time, and the hunting in the night with or without such [ 659 1
vizors, is felony; but the party may make it trespass only,
if he pleases. Dy. 50. a.
2. It doth not extend to the forest, or chase, or park of the king's,
{b) nor to forests, parks, or warrens in reputation only, and not in
right.
3. The complaint may be made to any one justice of peace or of
the council, and the warrant may be granted by any one.
4. The warrant must be in writing under seal, and grounded upon
an examination shewing a probable cause of suspicion.
5. When the oftender is brought, he must be examined of the fact
done by himself, and then of the fact done by others, but not upon
oath.
6. A hunting without killing is within the penalty.
7. Tho the hunting be not felony, yet the rescue or disobeyance is
felony.
S. But the rescue or disobeyance made felony is only that which is '
done by the party, not by a stranger.
And altho the party rescue himself, yet if he be re-taken, so as
execution of the warrant be had, it is no felony.
9. If the party plead not guilty, and is convict of the fact, it is
felony; but if he confess upon his arraignment, it then becomes only
a trespass finable, tho he denied it upon his first examination.
10. It is held, that if he confess not but conceals upon his exami-
nation before the justice, this alone makes it not felony, neither can
he be indicted upon this statute for such concealment; but it must be
a judicial concealment, namely, if being indicted for the hunting he
upon his arraignment conceal, then he shall be indicted de novo for
such concealment; and if convict thereof, he shall be attaint of felony
(a) But now by 9 Geo. 1, cap, 22. (continued by 6 Geo. 2^ cap. 37.) it is made felony
without benefit of clergy for any person being armed with any offensive weapons, and
having their faces blacked or disguised, to appear in any forest, chase, S(C. or unlaw-
fully to hunt, kill or steal any deer, or rob any warren, or steal tish out of any river or
pond, or for any person unlawfully to hunt any deer in the king's forests, 4fc. or
maliciously to break down the head of any fish-pond, whereby the fish shall be lost or
destroye<^
(b) As to this case, a remedy was provided by 31 //. 8. cap. 12. whereby this offense,
if committed in the king's forests, &c. is absolutely made felony; but that statute being
repealed by the general clause of 1 E, 6. cap. 12. a remedy was again provided by the
statute of 9 Geo, 1. above-mentioned.
659 HISTORIA PLACITORUM CORONA.
for concealment, tho this seems a difficult exposition ;(c) for upon his
arraignment for the hunting he only answers to (hat indictment, and
is not examined touching others ; and besides, if he be indicted for
the hunting, if there be evidence to convict him of the fact, he is con-
vict of felony before the indictment for concealment comes; and if
there be not evidence to convict him of the principal, how shall there
be evidence to convict him of the concealment?
11. The concealment that makes a felony, must be a wilful con-
cealment.
By the statute of 3 H. 7. cap. 2. It is enacted, " That whereas
women, as well maidens, as widows and wives having substances,
some in moveable goods, some in lands and tenements, and some
being heirs apparent to their ancestors, had been often taken by mis-
doers contrary to their wills, and after married to such misdoers, or
to others by their assent, or defiled to the great displeasure of God,
contrary to the king's laws, and disparagement of the said women,
and utter heaviness and discomfort of their friends, and to evil ex-
ample of others, it is therefore ordained, established and enacted by
our sovereign lord the king, by the advice of the lords spiritual and
temporal, and commons in the said parliament assembled, and by
authority of the same, That what person or persons from henceforth
taketh any women so against her will unlawfully, that is to say, maid,
widow, or wife, that such taking, procuring, abetting to the same,
and also receiving wittingly the same woman so taken against h.er
will, and knowing the same, be felony; and that such misdoers,
takers, and procurators to the same, and receivers, knowing the same
offense in form aforesaid, be henceforth reputed and judged as prin-
cipal felons. Provided that this act extend not to any per-
[660]] son taking any woman, only claiming her as his ward or
bond- woman. "[I]
For the making of a felony within this statute, there must be these
circumstances on the part of the woman: 1. That the maid, wife,
or widow, have substance of goods or land, or be heir apparent.
2. That she be taken away against her will. 3. That she be mar-
ried to, or defiled by the misdoer, or some others by his consent.
Without these three concurring, it makes no felony within this sta-
tute, 3 Ss' 4 P. S,' M. Dallison 22. 4. That she be not in ward, or a
bond-woman to the person that taketh her, or causeth her to be taken
only as his ward or bond-woman. Co. P. C. cap. 12. p. 61.
In FullwooiVs case, M. 13. Car. 1. B. R. Cro. jj. 482. 484. 488.
(c) This difficulty arises from the aforesaid construction of the act, tiiat it must intend
a judicial conceuhiient, wliereas the act seems plainly to mean a concealment upon his
examination before the justice; for after the act had given power to the justice to exam-
ine the suspected person, it immediately adds, and if the same person wilfully conceals,
^•c. the said concealment shall be felony; and if he tlien confess the truth, and all that he
shall be examined of, his offense shall be but trespass; the word then shews l|^e lime of
confession to be at the examination, and therefore the concealment likewise must be
intended to be at that time.
[1] Now repealed and supplied by 9. Geo. IV. c. 31. See ante, note to c. 59.^. 639.
HISTORIA PLACITORUM CORONJi:. 660
492. these points were resolved: 1. That if a woman be taken away
forceably in the county of Middlesex, and married in the county of
Surrey, iho. fact is indictable in neither county; for the taking without
the marriage, nor the marriage without the taking, make not felony.
2. But if she were taken in the county of Middles ex, 3Lud carried into
the county of Surrey, so that it is a continuing force in Surrey, tho
begun in Middlesex, and then she is married in Surrey, there the
offender may be indicted upon this statute in Surrey. 3. Tho pos-
sibly the marriage or the defilement might be by her consent, being
won thereunto by flatteries after the taking, yet this is felony, if tlie
first taking away were against her will, (a?) 4. That if as well the mar-
riage as the taking away were against her will, so that the marriage
was voidable, yet it is a marriage de facto, and therefore being taken
away against her will, and also married against her will, it is felony
within this statute. 5. That it is not necessary in the indictment to
say, that she was taken ed intetitione to marry or defile her, because
the statute hath no such words of ed intentione. But farther, he
marrying her the same day he took her, it must needs appear, that it
was ed intentione ; yet these words, ed intentione ad ipsam mai'i-
tand', are usually added in indictments upon this statute,
and it is safest so to do. 6. That the woman thus taken [661 ]
away and married may be sworn and give evidence against
the offender, who so took and married her, tho she be his wife de
facto. [2']
And all these points were accordingly resolved, H. 24 8,- 25 Car. 2.
in Brown's case,(e) upon this statute, only the indictment ran, cepit
ed intentione ad ipsam maritandam: the offender was convict and
executed: and the reasons why the woman was sworn and gave evi-
dence in the case of Brown were, 1. Because the taking away of the
woman and marrying were the same day, and she was rescued out
of their hands, and the offender taken the next day, and so all done
flagrante crimine. 2. It was but a forced marriage, and so no mar-
riage de jure. 3. There was no cohabitation. 4. Concurring evi-
dence to prove the whole fact. But had she freely without constraint
lived with him that thus married her, any considerable time, her ex-
amination in evidence might be more questionable.
By the statute of 39 Eliz. cap. 9. Clergy is taken away from the
principals, procurers, and accessaries before the offense committed.
By this act of 3 H. 7. the procurers, as well as the misdoers them-
selves, and any person that receives the woman thus taken away, are
{d) And so it was resolved in Swendsen's case, M. 1 Ann. State Tr. Vol. V. p. 468. in
which case most of the other points here mentioned were likewise ruled,
(e) 3 Keb. 193. I Ven. 243.
[2] 2 East's P. C, 454, who cites Hale 301, and tlie passage supra. Rex v. Brown,
1 Venlr. R. 243. Haniren Swendsen's case, 5 St. Tr. 456. Wukejield' s case, 2 Lew. C.
C. 1. 20. 279. Reg. v. Yore, 1 Jebh 6f Sy. R. 563. 572. Rex v. Sergeant. Rij. Sj M. 352.
3 Chitty's Cr. L. 817. note (y). Rose, on Cr. Ev. 115. 121. 1 Greenl. on Ev. § 343.
1 Russ. on Cri7n. 709, 710. Ed. 1845.
VOL. I. — 56
661 HISTORIA PLACITORUM CORONA.
principals by this statute, and so ousted of clergy; but he that receives
the offender knowingly, is only accessary after, and not excluded
from clergy.
Quxre, Whether tho the receiver of the woman be made princi-
pal by the act of 3 H. 7. he were intended to be ousted of clergy by
39 Eliz. cap 9.
The statute of 3 H. 7. cap. 14. recites, "That forasmuch as by
quarrels made to such as have been in great authority, office, and of
council with the kings of this reahn, hath ensued the destruction of
the kings and undoing of this realm, so as it hath appeared evidently,
when compassing of the death of such as were the king's true sub-
jects was had, the destruction of the prince was imagined thereby,
and for the most part it hath grown by the malice of the king's own
houshold servants, as now of late such a thing was like to
[ 662 ] have ensued; and forasmuch as by the law of this land, if
actual deeds be not had, there is no remedy for such false
compassings, imaginations, and confederacies had against any lord,
or any of the king's council, or any of the king's great officers in his
houshold, as steward, treasurer, comptroller, and so great inconve-
niences might ensue, if such ungodly demeaning should not be straitly
punished before that actual deed were done; therefore it is ordained
by the king, and the lords spiritual and temporal, and the commons
of the said parliament assembled, and by authority of the same, that
from henceforth the steward, treasurer, and comptroller of the king's
house for the time being, or one of them, shall have full power and
authority to inquire by twelve sad men and discreet persons of the
exchequer roll of the king's houshold, if any person admitted to be.
his servant, sworn, and his name put into the chequer roll of his
houshold, whatsoever he be, serving in any manner, office or room,
reputed, had or taken, under the state or degree of a lord, make any
conspiracies, compassing, confederacies or imaginations with any per-
son or persons to destroy or murder the king, or any lord of this
realm, or any other person sworn to the king's council, steward,
treasurer, or comptroller of the king's house, that if it be found before
the said steward for the time being by the said twelve sad men, that
any such of the king's servants as is abovesaid, hath confederated,
compassed, conspired, or imagined, as is abovesaid, that he so found
by that inquiry be put thereupon to answer, and the steward, trea-
surer, and comptroller, or two of them, have power to determine the
same matter according to the law; and if he put him in trial, that
then it be tried by other twelve sad men of the same houshold; and
that such misdoers have no challenge but for malice. And if such
misdoers be found guilty by confession or otherwise, that the said
otfense be judged felony, and they to have judgment and execution
, as felons attaint ought to have by the common law."
Vide the observations of my lord Coke upon this act, Co.
[663] P. C. cap. 4. where on the part of the offender there must
be these qualifications, viz. 1. He must be the king's sworn
servant. 2. His name must be in the chequer roll. 3. He must be
HISTORIA PLACITORUM CORONJG. 663
under the degree of a lord. 4. Tho his conspiring with another not
of the houshold be an oflense, yet he only of the houshold is the felon.
On the part of the person against whom the conspiracy is, are
these requisites: 1. The conspiracy to murder the king; or 2. A lord
of the realm, but yet only such as is sworn of the king's privy coun-
cil. 3. Any other of the king's privy council, tho under the degree
of a lord. 4. The steward, treasurer, or comptroller of the king's
house, tho neither a lord nor of the privy council.
The power to hear and determine. 1. The steward, treasurer, and
comptroller, [or any two of them, have power to determine,*] tho
the act saith, they or any one of them may inquire. 2. If a servant
of the king's house, ut supra, conspire the death of the steward,
treasurer, and comptroller, yet they remain the only judges in this
cause by this act, tho they may take others to their assistance, yet
none but they sit as judges. 3. The presentment and trial must be
only by the servants of the houshold. 4. The inquiry may be by
twelve or more, but the trial only by twelve. 5. No challenge but
for malice. 6. The conspiracy must be plotted in the king's hous-
hold. 7. The offender is to have his clergy.
And note, this being a new made felony, and the manner of its
determination particularly limited, it is not determinable before any
other judges, or in any other courts, neither in the king's bench, oyer
and terminer, or gaol delivery. Qusere, whether their session must
not be in the king's house.
By the statute of 7 H. 7. cap. 1. There is provision of felony against
captains and soldiers leaving their service ; but this I shall take up
hereafter, as also the statute of 3 H. 8. cap. 5. which I shall refer to
4 <^' 5 P. <^- M. cajj. 3.
I come to the time of H. 8. which was fruitful in enact-
ing new treasons and ^new felonies, and new offenses as to [ 664 ]
Prsemn7nre.
But there were two acts of parliament, that repeald as all new trea-
sons and misprisions of treasons, so all new felonies enacted at any
time after the first day of the reign of Henry 8. viz.
1 E. 6. cap. 12. Whereby it is enacted, " That all offenses made
felony by any act or acts of parliament made since the 23d day of
Jipril, in the first year of the reign of king H. 8. not being felony
before, and also all and every the branches and articles mentiond,
or in any ways declared in any of the said statutes concerning the
making of any offense or offenses to be felony, not being felony
before; and aU pains and forfeitures concerning the same, or any of
them, shall from henceforth be repeald, and utterly void and of none
effect."
1 Mar. cap. 1. whereby it is enacted, "That all offenses made
felony, or limited to be within the case of Prsemnnire, by any act or
acts of parliament, statute or statutes made since the first day of the
* The words here in the MS. are, Or any one or any two of them have power to inquire,
but they seem plainly to have been so written by mistake, the sense requiring them to
be as above.
664 HISTORIA PLACITORUM CORONiE.
first year of the reign of king Henry 8. not being felony before, nor
within the case o{ Proemunire, and all and every branch, article and
clause. mentiond, or in any ways declared in any of the said statutes
concernit)g the making of any offense or offenses to be felony, or
within the case of Prsemunire before, and all pains and forfeitures
concerning the same, or any of them, shall from henceforth be repeald
and utterly void, and of none effect."
The former of these statutes, and also the latter repeald all new
felonies enacted in the time of H. 8. who began his reign April 22.
1509. and the latter of these statutes repeald also the new created
felonies in the reign of E. 6.
But neither of Ihese statutes did extend to piracy or robbery upon
the sea, nor any such act as concerned matter of proceedings touch-
ing felonies, that were such before the time of H. 8. and therefore
those statutes in the time of//. 8. that concerned clergy, sanctuary,
peremptory challenge, place or manner of trial of felons, or
r 665 3 the erecting of new jurisdictions for their trial, as that of
33 H. 8. caj). 12. for felonies in the king's court; for these acts
were not constitutive of new felonies, but only directions of the course
of proceedings in cases of old felonies.
Those statutes that made new felonies both in the time of H. 8.
and E. 6. are therefore of these kinds, viz.
1. Such as were enacted de novo in the times of H. 8. and E. 6.
and were never after revived or re-enacted by any subsequent act of
parliament; such were those of 31 H. 8. cap. 2. of breaking the
heads of ponds, and taking fish, 31 H. 8. cap. 12. and 32 H. 8. cap.
11. stealing of hawks eggs, and hunting in the king's forests, <^«c.
33 //. 8. cap. 8. of witchcraft. 33 H. 8. cap. 14. of prophecies.
37 H. 8. cap. 6. The burning of a frame of timber. 37 H. 8. cap. 10.
Libellous papers charging men to have spoken treason. 23 H. 8.
cap. 11. Breaking prison.
2. Such as were repeald but enacted again in the same kind, but
with some alterations, as 22 H. 8. cap. 10. concerning Egyptians,
altered by 1 4* 2 P. S,- M. cap. 4. and by 5 Eliz. cap. 20.
3. Such as were de novo enacted to be felonies in the times of
H. 8. and E. 6. and repeald, but re-enacted again, as 22 H. 8. cap. 1 1.
touching cutting of Powdike, renewed by 2 <§* 3 P. %• M. cap. 19.
3 H. 8. cap. 5. concerning soldiers, re-enacted in a great measure by
2 E. 6. cap. 2. and 4 S,- 5 P. S,' M. cap. 3. 21 H. 8. cap. 7. servants
embezzling their masters goods, by 5 Eliz. cap. 10. 25 H. 8. cap. 6.
concerning buggery, by 5 Eliz. cap. 17. 23 //. 8. cap. 16. concern-
ing Scotchmen, re-enacted by 1 Eliz. cap. 7. but finally repeald by
4 Jac. 1. cap. 1.
4. Some offenses were made felony by former acts of parliament
before H. 8. but had additions to them, ex.tending the felonies farther
than the old acts, some such thing may be found in the statute of
3 H. 8. cap. 5. concerning soldiers in relation to the statute of 7 H. 7.
cap. 1. and then the old felonies stand, but the additional felonies are
repeald.
HISTORIA PLACITORUM CORONiE. 666
Concerning the first of these ranks of acts I shall say nothing,
because they are now utterly void; but concerning the other three
ranks of statutes, I shall proceed according to their order of time.
First, For the statute of 3 H. 8. cap. 5. as also that of 2 E. 6. cap.
2. concerning soldiers, I shall refer them to the statute of 4 <§' 5. P. 4*
M. cap. IS.
By the statute of 21 H. 8. cap. 7. it is enacted, "That all and sin-
gular servants, to whom any caskets, jewels, money, goods or chat-
tels, by his or their masters or mistresses, shall from henceforth be
delivered to keep, that if any such servant or servants withdraw
themselves from their masters or mistresses, and go away with the
said caskets, jewels, money, goods or chattels, or any part thereof, to
the intent to steal the same, and defraud his or their masters or mis-
tresses thereof, contrary to the trust and confidence to him or them
put by his or tlieir masters or mistresses, or else being in the service
of his or their master or mistresses without any assent or command-
ment of his master or mistress, embezzle the same caskets, jewels,
money, goods or chattels, or any part thereof, or otherwise convert
the same to his own use with like purpose to steal it, that if tlie said
casket, jewels, money, goods or chattels, that any such servant shall
go away with, or which he shall embezzle with purpose to steal as
aforesaid, be of the value of forty shillings, or above, that then the
same false, fraudulent, or untrue act and demeanor shall from hence-
forth be deemed and adjudged felony, &c. Provided it extends not
to apprentices, nor to any person under the age of eighteen years;
but every such apprentice or person within that age doing that act
shall be and stand in the like case as they were before the making
of this act. This act to endure till the next parliament."
By the act of 27 H. 8. cap. 17. Clergy was taken away in this
case, if the indictment were laid specially upon the act of 21 i^. 8.
and pursuant to the same; and by the act of 28 H. 8. cap. 2. this act
of 21 H. 8. was made perpetual; but by the act of 1 E. 6. cap. 12.
these acts were both repealed.
But again, by the act of 5 Eliz. cap. 10. this act of 21
H. 8. was re-enacted and revived, yet it did not revive the [ 667 ]
act of 27 H. 8. cap. 17. for taking away clergy. 1. Because
the words of the reviving act of 5 Eliz. revive only the act of
21 H. 8. specially and particularly by name, and not any other
incident act concerning clergy. And again, 2. Because the acts
taking away clergy were specially repealed by the statute of 1 E. 6.
cap. 12, except in those cases there particularly enumerated, so
that at this day a party indicted and convict upon this statute hath
his clergy.(/)
And tiole, that in this case, and all other cases of this nature
where a statute is repealed and re-enacted, an indictment or infor-
(/) But by 12 Ann. cap. 7. Clergy is in such case taken away from facts committed
in any house or out-house, except as to apprentices under the age of fifteen years, rol)-
bing their masters.
667 ' HISTORIA PLACITORUM CORONA.
mation may conclude either contra formom statutorum, or contra
formam statiiti, for it shall be intended the last statute. And so it
is, if a statute be but temporary and then expires, and then is re-
enacted ; but if a statute be continued till the end of the next session
of parliament, and before that next session be ended it is continued
over, the indictment may run contra formam of the first statute, for
it never was interrupted, or it may conclude contra formam statu-
torum. F. 42 Eliz. B. R. Dingly and Moore,{g) M 31 4' 32 Eliz.
B. R. Milt's case.
This statute was introductive of a new law, when the goods were
actually delivered to the servant that goes away with them; for
where there is such a delivery it could not at common law be a
felony.
But yet a servant might be guilty of felony at common law, if he
takes the goods of his master feloniously, nay, tho they be goods
under their charge, as a shepherd, butler, 6,'C. vide supra, cop. 43.
p. 505. and for this he may be indicted at this day as a felony at
common law, and of this felony at common law, an apprentice or
servant under the age of eighteen years may be guilty, and indicted
thereof at common law.
And therefore tho the statute of 21 H. 8. exempt an apprentice or
servant under the age of eighteen years from the pain of
r 668 3 felony enacted de novo by this statute, namely, where goods
are actually delivered to him, yet it leaves him in the same
condition as to any felony at common law, as if he were not except-
ed; and therefore if my butler or shepherd, under the age of eighteen
years, or if my apprentice takes away my goods feloniously without
my actual delivery, tho they are under the value of forty shillings,
he is indictable of felony at common law.
If I deliver my servant a bond to receive money, or deliver him
goods to sell, and he receives the money upon the bond or goods,
and goes away with it, this is not felony at common law because the
money is delivered to him, nor felony by this statute, because tho
the bond or goods were delivered him by the master, yet the money
was not so delivered by the master. Di/. 5. a. Co. P. C. cap. 44.
And yet by the very payment of the money to the servant to the
master's use, the master is by law said to be actually possessed of
this money; and if taken away from the servant by a trespasser or
robber, the master may have a general action of trespass, or action
upon the statute of hue and cry.
But it is held, that if the master delivers to the servant twenty
pounds in, silver to change it into gold at the goldsmith's or leather
to make shoes, and he run away with the gold or shoes, it is felony.
Crompt. Justic. 35. b.
If Ji. hath two servants, B. and C. B. by the command of Jl. the
master, and in his presence delivers the master's goods to C. by the
{g) Cro. Eliz. 750.
HISTORIA PLACITORUM CORONA. 668
master's command, and C. runs away with it, this is felony within
the statute, for it is the master's dehvery; but suppose it be de-
livered by the master's command, but in the master's absence,
qusere, whether this be within the statute, and what ditference there
is between this case and the receiving money from a creditor by the
master's directions? yet vide Dy. 5. it seems felony.
If the master's wife delivers goods of the master to the servant to
keep, and he goes away with it, it seems this is within the statute,
for he hath them by delivery of his mistress, and the master's wife is
as well his mistress, as if she were sole, vide statute 25 E.'i. for petit
treason.
By the statute of 22 H. S. cap. 11. Every perverse and
malicious cutting down of the new Powdike ot Marshland, ["669 1
or of the old Powdike of the isle of Ely, or of any part
thereof, or of any other bank, being part of the rind and uttermost
part of the country of Marshland, made for the defense thereof,
other than working upon the same for repairing or amending the
fortifying thereof, is enacted to be felony.
This act was repealed by 1 E. 6. cap. 12. and 1 Mar. cap. 1. but
is revived by 2 4' 3 P. <§' M. cap. 19. and so continues.
But the offender hath the benefit of clergy.
By the statute of 23 H. 8. cap. 16. The selling of a horse to a
Scotchman, or delivering a horse in Scotland is made felony.
This was repealed by 1 E. 6. cap. 12. and tho made penal by the
act of 1 E. 6. cap. 5. yet never revived,(A) and the acts of this kind
are repealed by 4 Jac. 1. cap. 1. as to Scotland.
By the act of 25 H. 8. cap. 6. buggery with mankind or beast is
enacted to be felony, and the felon excluded from clergy.
This statute was repealed by the general act of 1 E. 6. cap. 12. and
in 2 E. 6. cap. 29. it was enacted to be felony without clergy, but
without loss of lands or goods, or corruption of blood.
But this act of 2 E. 6. was repealed by the statute of 1 Afar,
cap. 1. and so both acts stood repealed until 5 Eliz.
But by the statute of 5 Eliz. cap. 17. the entire act of 25 H. 8.
cap. 6. is revived and re-enacted, so that this offense stands at this
day absolutely felony without benefit of clergy.
To make buggery there must be penetratio, as in case of rape.
Vide supra, p. 628.
A woman may be guilty of buggery with a beast within this
statute.
If buggery be committed upon a man of the age of dis-
cretion, both are felons within this law. [_ 670 J
But if with a man under the age of discretion, viz. four-
teen years old, then the buggerer only is the felon.
Those that are present, aiding and abetting, are all principals; the
statute making it felony generally; there are or maybe accessaries
Qi) This must be some mistake in the MS. for this statute was revived, as our author
himself says a little above, p. 665. by 1 Eliz. cap. 7. tho afterwards repeal'd by
4 Jac. I cap.
670 HISTORIA PLACITORUM CORONiE.
before and after, as in case of rape. But tho none of the principals
are admitted to their clergy, yet accessaries before and after are not
excluded from clergy.
Touching the time of E. 6. I do not find any new felony enacted,
but that of 2 4* 3 E. 6. cap. 6. which I shall hereafter consider, when
1 come to 4 4' 5 P. 8^- M. cap. 3.
In the time of queen Mary we find these statutes following
making new felonies.
By the statute oi \ 8f 2 P. Sr M. cap. 4. " If any outlandish people
calling themselves or being called Egyptians, shall remain in this
realm or Wales one month at one or several times. And if any
person being fourteen years old, which hath been seen or found in
the fellowship of such Egyptians, or which hath disguised him or
herself like them, shall remain here or in Wales one month either at
one or several times, it is felony. "(/)
The trial to be by the inhabitants of the county, where they are
taken, and not per medietatem linguse, no sanctuary or clergy to be
allowed.
A proviso, that it extend not to their children under thirteen years
old.
And by the statute of 5 Eliz. cap. 20. the act of 1 4' 2 P. <§• M. is
confirmed and extended to all above the age of fourteen years, that
shall be found in the company of vagabonds, commonly called or
calling themselves Egyptians, or counterfeiting or disguising them-
selves by their apparel, speech or behaviour like them, if they con-
tinue one month, altho they are persons born in the king's dominions.
Clergy is ousted.
I have not known these statutes much put in execution,
[] 671 3 only about twenty years since at the assizes at Bury about
thirteen were condemned and executed for this offense.
I am now come to that, which I have all along promised, namely,
the felony of soldiers running from their captains, enacted by several
statutes, as namely, 18 H. 6. cap. 19. 7 H. 7. cap. 1. 3 H. 8. cap. 5.
2 S)' 3 E. 6. cap. 2. repeal'd by 1 Mar. cap. 1. and revived by 4 <^ 5
P. S,' M. cap. 5. and the statute of 5 Eliz. cap. 5.
I shall take up the whole matter together, beginning with the an-
tient statutes, and so descending downwards to the latter.
By the statute of IS H. 6. cap. 18. It is recited, "That divers cap-
tains, that were retained by indenture to serve the king, some beyond
the seas and some in the marches, had defrauded the soldiers under
their retiiuie of their pay; and enacts, that no captain, which shall
have the conduct of such retinue, and shall receive the king's wages
or the same, shall abate his soldiers their wages, except it be for
I heir cloathing, that is to say, if they shall be waged for half a year,
ten shillings a gown for a gentleman, six shillings and eight pence for
(i) Our author has here copied from Co. P. C, rap. 39. where the two statutes of
1 S( 2 P. Sf M. and 5 Eliz. cap, 20. are blended together; for this last clause and
the words at one or several times in the first clause belong to 5 Eliz. and not to
HISTORIA PLACITORUM CORONiE. 671
a yeoman, upon pain to forfeit twenty pounds for a spear, ten pounds
for a bow to the king, for whom he did abate."
And by the statute of 18 H. 6. cap. 19. It is recited and enacted,
as followeth, " Whereas many soldiers, which have taken parcel of
their wages of their captains, and so have muster'd and been entred
of record the king's soldiers before his commissioners for such terms,
for which their masters have indented, have sometimes, presently
after their muster and receiving part or all of their wages, departed
and gone where they will, and have not passed the sea with their
captains, and some passed the sea, and long within their terms de-
parted from their captains and the king's service, without apparent
license to them granted by their captains, to the great damage, Src. it
is enacted, that every man so{k) mustering and receiving the king's
wages, which departeth from his captain within his term, in
any manner aforesaid, (except notorious sickness by the visi- [ 672 ]
tation of God sufiers him not to go, and which he shall cer-
tify presently to his captain, and repay his money, so that he may
provide him for another soldier in his place) he shall be punished as
a felon, and the justices of the peace shall have power to hear and
determine the same: and that no soldier, man of arms or archer so
mustered of record, and going with his captain beyond the sea shall
return into England within the term for which his captain hath re-
tained him, nor leave his captain there in the king's service, and in
adventure of the war, except he hath reasonable cause by him shewed
to his captain, and by him to the chief in the country having royal
power, and thereupon shall have a license of the said captain wit-
nessed under his seal, and shewing the cause of his license; and if
any that doth muster of record come without letters testimonial of his
captain within his term on this side the sea, the mayors, <§'c. shall
arrest them, and detain them until it be inquired of, and if it be found
by inquiry before the justice of peace, and proved, that they have
mustered of record and departed from their captains without license,
as aforesaid, they shall be punished as felons." But it took not away
elergy.
By this act it appears, that the method of those times was, that as
well the soldiers as the captains were under a contract to serve in the
war, some for longer time, some for shorter, and sometimes the sub-
ordinate soldiers contracted with the king, but most commonly the
captain contracted with the king to serve him with such a number
of men raised by himself for such a time, as half a year or the like,
and the captain made his contract with his soldiers (therefore
called his retinue,) and the captain received the pay for himself and
them.
And this method continued until 7 H. 7. and for a long time after,
as appears by the whole preamble and body of the statute of 7 H. 7.
cap. 1.
(k) This word [so] restrains the statute to soldiers retain'd in tlic manner mentioned
in the act, which method of retainer being now disused, this statute is consequently be-
come of little force.
673 HISTORIA PLACITORUM CORONA.
By that statute it is enacted, " That every captain and petit cap-
tain having under them retinue of any soldier or soldiers at the
king's wages shall, under pains in the same act limited, pay to their
retinue of soldiers their wages rateably, as it is allowed by the king
or the treasurer of his wars, and that within six days next after ihey
have received it; and if any soldier, being no captain, immediately
retained with the king, which hereafter shall be in wages and re-
tained, or takes any -prest to serve the king upon the sea or upon the
land beyond the sea, departs out of the king's service without license
of his captain, that such departing be felony without the privilege of
clergy; and the justices in every shire, where such oifender is taken,
shall hear and determine the offense, as if done in the same connty;
and their departure and retainer, if traversed, shall be tried in the
same county where taken." But this act extended not to soldiers
impressed to serve in England.
By this statute it appears, that the retainer of the captain was by
contract with the king, and he by the same contract was to provide
the soldiers, which were to be at the king's pay. This is continued
also till 3 H. 8. as appears by the preamble and body of the act of
3 H. S. cap. 5.
By that act of 3 H. 8. cap. 5. The same punishment is enacted
upon soldiers departing without license, only here it is without license
of the king's lieutenant.
By the statute of 7 H. 7. It is receiving wages or prest to serve
the king upon or beyond the sea; here it is to serve the king upon
the sea, or upon the land, or beyond the sea, which is larger than
7 H. 7. for it extends to land service, and the punishment is limited
to the justices of the peace of the counties where taken.
Proviso, that it extend not to captains or soldiers retained to serve
in Calais, S,'C. Berwick or fVales.
It is resolved 6 Co. Rep. 27. a. in the case of soldiers, that both
these statutes have continuance, and tiie word {king) extends to the
successors of those kings, (m) and altho by the statute of
{] G74 ] 1 ^. 6. and 1 Mar. all new felonies made since the first day
of the reign of //. 8. that were not felonies before, are re-
pealed, yet inasmuch as the statute of 3 H. 8. enacts no new felony,
but what was felony by 7 H. 7. cap. 1. Iho it vary as to the person,
that is to grant the license, and the persons that are to try it,(*) yet
it was in truth no new felony, and therefore it is held the statute of
3 //. 8. was not repealed by 1 Mar. or 1 E. 6.
But it seems to me to be repealed by 1 E. 6. and 1 Mar. for to
depart without license of the captain, and to depart without license
of the king's lieutenant, are several offenses, for suppose he had the
lieutenant's license and not the captain's, it is not excuse enough
within 7 H. 7. and if he had the captain's license and not the lieu-
tenant's, it excuselh not within the statute of 3 H. 8. But then
quaere, whether the exception for clergy of men in orders, or of sol-
(m) Vide anlea, pag. 100.
(*) The persons impower'd to try it are the same by both statutes. .
HISTORIA PLACITORUM CORONiE. 674
diers in Calais, Berwick, and Wales, extends to the statute of
7 H. 7. cap. 1.
If this variance by the statute of 3 H. 8. be a repeal of the statute
of 7 H. 7. then they are both repealed, that of 7 H. 7. by 3 H. 8. and
that of 3 H. 8. by 1 E. 6. and 1 Mar.
The statute of 2 8,- 3 E. 6. cap. 2. recites, " That whereas divers
of the king's subjects, according to their bounden duties, have
appointed and sent into the parts beyond the seas and into Scofhaid
many able persons and soldiers with horses and harness meet to
serve the king in his wars to their great charges and costs, yet some
of the soldiers so sent have, contrary to their bounden duty, sold or
converted the said horses or harness, whereby the king hath been
destitute of their service, and the owners who sent them have been
deceived of their horses and harness, and less able to refurnish other
like soldiers with horses and harness at such time as they shall be
commanded by the King."
It is enacted, " That if any soldier hereafter serving the king in his
wars in any of his dominions, or on the seas, or beyond the seas,
shall hereafter purloin, Si-c. such horses or arms, he shall be commit-
ted by the lieutenant, S,'c. upon due proof or testimony, till
satisfaction, S,'c. And if any soldiers serving, as is aforesaid, [ 675 ]
depart without license of his lieutenant or other above-
named with booty or otherwise, being in the enemies country, or
elsewhere in the king's service, or out of any garrison, where he or
they be appointed to serve, that then every such soldier so departing
without license, shall be taken and judged as a felon without benefit
of clergy or sanctuary; and the justices of every shire, where he is
taken, shall have power to hear and determine the offense, as if com-
mitted in the same county.
"Provisions against captains short pay,4'c. Provided not to extend
to detaining of wages for victuals, harness, weapons, or for Siuy prest
money provided and delivered to such soldier."
Nota, This act, tho it vary from the preamble of the other acts of
7 H. 7. and 3 H. 8. and recites, that the king's subjects according to
their bounden duty had sent men and soldiers, doth not necessarily
infer a compulsive power upon the persons so to send, or so to go;
1. Unless they were bound by tenure to attend in person or send;
such were tenants by knights service. (n) 2. Unless obliged by the
statute of 11 H.l. cap. 18. or 19 //^ 7. cap. 1. as having offices, pen-
sions, or lands given by the king, who by these statutes were bound
to follow the king in his wars, but at the king's wages, by those
statutes which were held perpetual. 3. Or unless they had con-
tracted with the king to find him soldiers, for this course was not
wholly out of use, and the preamble seems to import as much, for
they sent their soldiers, and when they thus departed with their arms
were bound to refurnish others.
And tho there be mention oi prest money in this act; yet in truth
(n) See Co. Lit. p. 76. a. § 103.
675 HISTORIA PLACITORUM CORONA.
it was imprest money, or the earnest of the contract between the
king by the captain and the soldiers, and not as is now used.
But yet upon this act two things are observable. 1. That this act
did not nnake the departure of any soldier to be felony,
[ 676 3 ""If^ss he were actually in the king's service in his wars.
6 Co. Rep. 27. a. case of soldiers.
2, Tho this felony was in substance the same, that was enacted
by 7 H. 7. yet the general clause of the act of 1 Mar. cap. 1. re-
pealed it.
And this is accordingly so recited by the statute of 4 ^ 5 P. Sr M.
cap. 3. which doth recite it to be repealed, and therefore by an ex-
press enacting clause renews that clause of the statute of 2 <§• 3 E. 6.
that makes such departure felony.
By the statute of 5 Eliz. cap. 5. It is recited, " That it hath been
doubted, whether the statute of IS H. 6. cap. 19. did or ought to
extend to mariners and gunners serving on the seas taking wages of
the king or queen. It is expressed, ordained, and enacted and
declared, that the said statute in all pains, forfeitures and other
things did and doth, and hereafter shall extend as well to all and
every mariner and gunner having taken, or that shall hereafter take
prest or wages to serve the queen, her heirs or successors, to all
intents and purposes, as the same did or doth to any soldier; any
diversity of opinion, doubt, or matter to the contrary notwith-
standing." But this takes not away the benefit of clergy.
In Co. Rep. 27. a. The case of soldiers. The case was, that
divers soldiers after they were prest, and going towards Ireland to
serve against the rebels there, and before they had served in the
war, did depart and esloigne themselves; hereupon it was resolved
by all the judges of England, 43 Eliz. upon a reference to them
made, as it seems, 1. That this case was not within the statute of
18 H. 6. but that act is now of little use, because that act refers to
the antient manner of retaining soldiers, which was usual between
the king and great men, to serve the king with such a number of
men for a certain time. 2. That the statute of 2 <§• 3 E. 6. cap. 2.
revived by 4 8r 5 P. fy M. extended not to this case, for that sta-
tute extended to the departure of a soldier after he had been in
actual service in the war. 3. That the statutes of 7 H. 7. cap. 1.
and 3 //. 8. cap. 5. which in substance are both of one
[ 677 ] effect, are perpetual laws, and the word king extends to his
successors, and upon those two acts divers soldiers were
attaint and executed.
The reason thereof cannot be grounded upon any supposition,
that the course of military retainers was altered in 7 H. 7. from
what it was in the time of //. 6. for there arc very many indentures
of retainers of record according to the antient form long after that
time, and indeed the statutes of 7 H. 7. and 3 H. 8. do import as
much, as will easily appear to an attentive reader of them: But that
which seems to extend the acts of 7 //. 7. and 3 H. 8. to this case,
are the words or take any prest, to serve the king; which words
HISTORIA PLACITORUM CORONiE. 677
are in these statutes and in that of 5 EHz. cap. 5, which are wanting
both ill the statute of 18 //. 6. cap. 19. and 2 8^- 3 E. 6. cap. 2. for
that makes them subject to the penalty for departing without Hcense,
as well as if they had received wages, or had been mustered, or been
in actual service in the wars.
All the difficulty rests in the word pre.st, viz. whether it be to be
intended passively from premo pressi, as it is commonly used at this
day, and is so exprest in the case of soldiers, ./?/??'e5 ceo quih fueront
prest : Or whether to be taken actively, as it is exprest in the statutes
of 1 H. 1. 3 H. 8, and 5 Eliz. having taken prest to serve, &ic, prx-
stitium, or the earnest of their contract.(o)
All do agree, that if a man do voluntarily receive or take py^est to
serve as a soldier, mariner, or gunner, either upon or beyond the seas,
he is bound thereby, and if he depart without license, it is
felony within the statute of 7 H. 7. cap. 1. 3 H. 8. cap. 5. [678]
and 5 Eliz. cap. 5. for the words of the statutes are express
in it; only in the case of a soldier it is without benefit of clergy, but
of a mariner or gunner it is within benefit of clergy, because the
statute of 18 H. 6. cap. 19. doth not exclude clergy, and the statute
of 5 Eliz. extends only the statute of 18 H. 6. to mariners and gun-
ners, and mentions nothing of the statute of 7 ^ 7. or 3 H. 8. which
exclude clergy. But of the business of clergy hereafter in this
chapter.
But on the other side, the compulsion of men to go beyond or upon
the sea, or otherwise of imprisoning of them, or compelling men to
take prest money, or otherwise to imprison them hath been, I confess,
a practice long in use; how far it is justifiable or not the books that
have treated of it are to be consulted, nde the argument of Calvin's
case, 7 Co. Rep. 7. b. He that reads the comment of my lord Coke upon
Confirmatio Cartar, cap. 5. and his observations and conclusions
there upon the statutes of 1 E. 3. cap. 5 ^^ T.(p) 18 E. 3. cap. 7.{g)
25 E. 3. cap. 8.{r) 4 //. 4. cap. \3.{s) may reasonably think he varied
(o) Whatever doubts may formerly have been about tlie meaning of the word prest,
yet it seems now to be fixt to tlie latter sense by 5 ^ 6 W. ^ M. cap. 15. for it is there
enacted, "That no person, that shall be listed for the land service, should for the future
be esteemed a listed soldier, or be subject to the penalties of this act, or any other
penalty for his behaviour as a soldier, unless before his being listed or inserted in any
muster-roll he shall have been brouglit before a justice of peace, (not being an officer in
the army) or chief magistrate of some city, or high constable of the hundred or division
where the party shall be listed, and before such justice, ^c. shall declare his free con-
sent to be listed as a soldier." Altho the former clause of this statute for reviving the
punishment of mutiny or desertion be limited to the time mentiond in the act, yet this
clause coming after that limitation, and being general not only in relation to the penal-
ties of this act, but of any otiier act, seems to be perpetual.
{p) This statute provides, that no man shall be charged to arm himself otherwise
than was formerly wont, and that no man be compeld to go out of his shire, but where
necessity requireth, and sudden coming of strange enemies into the realm.
{q) This statute ordains, that men of arms, ^c. chosen to go in the king's service out
of England, shall be at the king's wages, till their coming again.
(r) This statute enacts, that no man shall be constraind to find men of arms, other
than those who hold by such service, except it be by common assent in parliament.
(«) The design of this statute is chiefly to confirm the three acts above mentiond.
678 HISTORIA PLACITORUM CORONA.
his opinion. (/) And he, that looks upon the acts enabling pressing
of soldiers and mariners for foreign service upon or beyond the sea,
namely 17 Car. 1. cup. 12, cap. 25. cap. 26. may think that
r 679 1 those times made some doubt of \i.{u) But of this matter
I deliver no opinion. (a*) Howsoever, to make a felony
within those acts of 7 H. 7. cap. 1. 3 H. 8. cap. 5. 5 Eliz. cap. 5. it
must be laid in the indictment and proved upon evidence. 1. That
either they received wages, or took prest to serve the king upon sea
or land. 2. That he, that thus imprested them, was commissioned
by the king so to imprest them.
Touching clergy in these offenses.
1. He that is convict upon the statute of \S H. 6. cap. 19. shall
have his clergy. Co. P. C. cap. 2Q.
2. Consequently a mariner or gunner, that hath taken wages or
prest, shall have his clergy, for the statute of 5 Eliz. cap. 5. extends
only the pains and penalties of the statute of \Q H. 6. to this case,
and by that statute of IS H. 6. clergy was not taken away.
3. That a departing contrary to the statute of 7 H. 1. or 3 H. 8.
is by those statutes exempted from clergy, only the statute of 3 H. 8.
cap. 5. allows men in orders the benefit of clergy.
4. The statute of 2 <§' 3 E. 6. takes away clergy from those, that
depart without license after they have served the king in his wars.
5. By the statute of 1 E. 6. cap. 12. All persons convict of any
felony not excepted in that act, whereof this is none, shall have their
clergy, as he might have had before 24 Jlpril, 1 H. 8. and therefore
an offender against 7 H. 7. cap. 1. is ousted of his clergy, because
ousted thereof by 7 H. 7. cap. 1. only if they be in orders, they have
privilege of clergy by the statute of 3 H. 8. cap. 5.
6. But if he be indicted upon the statute of 3 H. 8. cap. 5.
r 680 ] qusere, whether he shall not have his clergy, for tho the felony
in substance be the same, yet this statute makes it felony to
depart without the license of the king's lieutenant ; but the statute
(Jt) In Calmn's case he was of opinion, that the subject is bound to serve the king in
his wars both within and without the realm; and in his comment upon conjirmatio car-
tar, cap. 5. 2 Iiistit. 528. he says, that the statutes above mentiond, (which provide, that
none shall be compeld to go to the king's war out of his shire, except in case of necessity,
nor shall be conslraind to find men of arms, except by consent of parliament,) were but
declarations of the anlient law of England. And again, in his comment on Magna
Charta, cap. 29. 2 Insiit. 47. he says, that the king cannot send any subject against his
will to serve him out of the realm, not even into Ireland, for then under pretense of ser-
vice he might send liim into banishment.
(m) Or rather were clear, that it could not be legally done without a special act of par-
liament for that purpose; the like may be argued from some other temporary statutes
enacted since our author's time, for authorizing the pressing of soldiers and mariners,
viz. 2^3 Ann. cap, 19. 3 <^ 4 Ann, cup. 11. 4 Arm. cap. 10. 5 Ann. cap. 15. 6 Ann.
cap. 10. &c. &c.
(x) But it may be easily perceived, that the reason why our author declines delivering
any opinion was, because he did not concur with the then prevailing practice, a practice
which seems repugnant to the liberties of an Englishman, and irreconcilcable to the es-
tablishcd rules of law, viz. that a man without any offense by him committed, or any
law to authorize it, should be hurried away like a criminal from his friends and family,
and carried by force into a remote and dangerous service.
HISTORIA PLACITORUM CORONA. 680
of 7 H. 7. cap. 1. makes it felony to depart without license of the cap-
tain, and therefore vide supra, p. 674. whether 3 H. 8. be not re-
pealed by 1 E. 6. as a felony newly made since the lirst day of the
reign of H. 8.
If a man receive imprest to serve the king beyond the sea, and is
dehvered over to a conductor to be brought to a certain place at the
sea side, and is in the king's wages, and runneth away without license
of the conductor, all besides [^Croke,'] Yelverton and Hutton, agreed
it to be felony, and the conductor is as to this purpose a captain ; but
all agreed, that if the conductor at the place delivers him over to an-
other conductor, this second conductor is not a captain within the
statute ;(y) but Yelverton and Hutton held, that in neither case it is
felony, unless the conductor be also a captain, and so named in the
indenture between the king and him, which all agreed to be the
safest way.
It was held, that it could not be tried before other justices, than
such as are limited by the act, because a new felony, and limited to
be tried in another manner than the law directs, viz, in the county
where taken. M. 3 Car. Hutt. Rep. 134. nine judges versus CrokCf
Hutton, and Yelverton, vide Cro. Car. 71. the better [greater] opin-
ion was, that it was felony and may be tried before justices of oyer
and terminer or gaol delivery, as well as of the peace.
But surely the press-masters or constables, that usually take up
men for service, are not captains within the act, neither is the running
from them felony within these statutes.(2r)
There are no other felonies newly enacted in the time of
queen Mary, but those that were temporary, as 1 4' 2 P. <^ [ 681 3
M. cap. 3. telling false news, ^'c. after a former conviction,(*)
and 1 Mar. cap. 12. concerning riots.
(y) The riesolution here did not distinguish between a first and second conductor, but
between a conductor, who by agreement with the captain had the leading them quite
thro to the place of rendezvous, and one who was hired to carry them part of the way,
and then deliver them to another conductor; a conductor of this last sort, whether first
or second, it was agreed was not a captain within the statute. See Hut. 134.
(z) These several acts of parliament enacted for the punishment of soldiers running
away from their captains are now in a manner useless, by reason of the frequent statutes
for punishing mutiny and desertion by the martial law, a method more concise and
effectual ; which, however necessary it may be in the time of war, is by many thought
not suitable to English freedom in times of peace and tranquility. See the statutes
1 W. Sf M. Sess. 1. cap. 5. and 6 Geo. 2. cap. 3. between which years they have been often
renevvd, it not having been judged proper to make them of long continuance, but rather
to renew them from year to year.
(*) This offense was not made felony, but was punishable by imprisonment for life, and
forfeiture of goods and chattels.
681 HISTORIA PLACITORUM CORONA.
CHAP. LXIV.
CONCERNING FELONIES NEWLY ENACTED IN THE TIMES OP QUEEN
ELIZABETH, KING JAMES, KING CHARLES I. AND KING CHARLES II.
In the time of Q. Elizabeth there were several acts for making new
felonies, and ihey be ranked into these ranks.
I. Such as were only temporary, or during the queen's life; such
were the statutes of 1 Eliz. cap. 16. which in some cases made re-
bellious assemblies felony. 14 Eliz. cap. 1. touching witholding the
queen's castles and other matters. 23 Eliz. cap. 2. touching seditious
books, letters, prophecies, calculation of the queen's nativity, <§'c.
II. Such as were perpetual, or otherwise continued, but afterwards
repealed, as 1 Eliz. cap. 10. and 14 Eliz. cap. 4. touching exporta-
tion of leather, repealed by the statute of 18 Eliz. cap. 9. 5 Eliz. cap.
16. concerning witchcraft, repealed by 1 Jac. 1. cap. 12.
III. Such as were perpetual and stand unrepealed, or
[682] were temporary at first, and made perpetual, and of these
I shall here give a brief account.
By the statute of 5 Eliz. cap. 14. It is enacted, "That if any per-
son or persons upon his or their own head or imagination, or by false
conspiracy or fraud with others, shall wittingly, subtilly and falsly
forge or make, or subtilly cause, or wittingly assent to be forged or
made any false deed, charter, or writing sealed, court-roll, or the will
of any person in writing, to the intent, that the state of freehold or
inheritance of any person or persons, of in or to any lands, tenements
or hereditaments, freehold or copyhold, or the right, title, or interest
of any person or persons in or to the same, or any of them shall or
may be molested, troubled, defeated, recovered or charged; or shall
pronounce, publish, or shew forth in evidence any such false or
forged deed, charter, writing, court-roll or will as true, knowing the
same to be false and forged, as is aforesaid, to the intent above remem-
bered, and shall thereof be convicted, either by action or actions, of
forger of false deeds to be founded upon this statute, or otherwise
according to the order and course of the common law, ^-c. shall pay
the party grieved his double costs and damages, to be set upon the
pillory, both his ears cut off, and also his nostrils slit and seared with
an hot iron, be imprisoned during life, and forfeit the profits of his
lands during life.(«)
" Or if any person, as before, shall forge, or assent to be forged,
4*c. any charter, deed, or writing, to the intent that any person may
have a term of years in any lands, not copyhold, or any annuity for
life, years, or in tail, or fee-simple, or shall forge any obligation, bill
(o) Upon this clause of the statute, Japhet Croke, alias Sir Peter Stranger, was con-
victed, Fasc. 4 Geo. 2. B. R. and sutfered the penalties of the act.
HISTORIA PLACITORUM CORONA. 682
obligatory, acquittance, release, or discharge of any debt, account,
suit, demand, or other thing personal ; or shall pronounce, ^^c. ut
supra, that then he shall pay the party grieved double costs and
damages, be set upon the pillory, and lose one of his ears, ^-c.
"And if any person or persons, being hereafter convict of
any of the otfenses aforesaid by any of the ways above [] 683 ]
limited, shall after his or their conviction or condemna-
tion eftsoons commit or perpetrate any of the offenses aforesaid,
that then every such second offense shall be adjudged felony; and
the parties convicted or attaint thereof according to law shall suffer
death, and forfeit their goods and lands, as in case of felony,
without having advantage of sanctuary or clergy; but the wife
not to lose her dower, nor blood to be corrupted, nor heirs dis-
herited.
" Justices of oyer and terminer and of assize to hear and deter-
mine the offenses against this act.
" Not to extend to any attorney or lawyer pleading a forged deed,
not being party or privy to the forging, nor to the exemplification*of
a forged deed, nor to any judge, that shall cause the seal to be set to
such exemplification."
Upon this statute, so far as it relates to felony, these things con-
siderable shall be set down in order.
1. What is a making, forging, or assenting.
If j1. makes a deed of feofment to B. and after makes a deed of
feofment to C. with an ante date before the other feofment, this was
a forging within the statute 1 H. 5. cap. 3. and also within this
statute. Co. P. C. cap. 75. 27 H. 6. 3. a.
But note, that it is not the bare antedating of a deed, that makes
a forgery, for then most assurances, especially bargains and sales for
recoveries, leases for years to enable a release would be forgeries;
but that which makes it forgery in the former case, is the intent to
avoid his own feofment; and the words of this statute are, to the
intent that the estate of another person should be disturbed; so
the intent is to be joined in case of forgery.
Again, if ^. make a true deed of feofment to B. of the manor of
Dale, and after B. rase out D. and put in S. whereby the feofment
imports the manor of Sale ; or if ,M. grants a rent-charge to B. for
life, and after sealing and delivery P. rases the deed, and enlarges
the sum or estate, this is a subtle making of a false deed
within this statute; vide 1 Anders. Rep. Puckering' s case, [ 684 1
Case 151. p. 100.
An assent after the fact committed, makes not the party assenting
guilty, or principal in the forging; but it must be a precedent or con-
comitant assent.
2. What is a writing sealed, deed, will, or court-rool?
The forging of a false customary of a manor put under seal,
whereby the interest of the lord is molested, is a writing under seal
within this statute. Dy. 322. b. Taverner^s case.
VOL. I. — 57
6S4 HISTORIA PLACITORUM CORON.^.
The inserting of a clause in a will purporting a devise of lands
without warrant or direction of the devisor is the forging of a will
within this statute, tho the whole will be not forged, and altho done
in the testator's life by the clerk that writes the will. Co. P. C. cap.
75. as^ainst the report of Di/. 288. a. Marvin's case.
But nole, this was when the testator was speechless, but if he had
his understanding, and assented to it, or published it afterwards, it is
no forgery, tho at first written without his direction.
Forging surrenders, admittances, court-rolls of copyhold lands are
within this statute.
If the deed or will forged purport only a lease for years, whereby
the freehold is charged, or of a rent-charge for years, it is within this
first branch.
^^. makes a lease for years to B. a forging of an assignment of that
lease from B. to C. is a forging of a deed within the second clause,
Co. P. C. ubi supra, against the opinion in Noy''s tiep. in Markatn's
case. (6)
But an assignment made here of a term for years of land in Ire-
land is said not to be within this statute, but punishable as a misde-
meanor in common law. 29 Eliz. Newman's case, Hughes 3 Part,
N. 221.
3. What is a pronouncing or publishing, knowing the same to be
forged ?
If ^. forges a deed, and B. tells C. that the deed is forged,
r 685 ] and yet C. publisheth it, it was resolved to be within the
statute in Ores ham' s csLse. P. 38 Eliz. Cam. Stellata.{c)
But it seems to me, tho such a relation may be an evidence of
fact to prove his knowledge, yet it is not concUisive, tho perchance
de facto the deed be forged; for possibly there might be circum-
stances of fact, that might make the person relating it, or his relation,
not credible ; so that the knowing must upon the whole matter be
left to the jury upon the circumstances of the case, and therefore the
case of Gresham being in the star-chamber, where the lords are
judges of the fact upon the evidence, is no authority in this case.
4. What is a writing, bill, bond, acquittance ?
A will in writing concerning goods only, is within this clause. (c?)
The forging of a statute staple, or recognizance in nature of a sta-
tute staple, is within this statute, because the party's hand and seal
are to it; but not to the forgery of a statute merchant or recogni-
(b) Noy, p. 42.
(c) This is the same with Mar'kham'' s case, and is cited by lord Coke for this purpose.
Co. P. C. p. 170. in margine.
(d) This seems to be grounded on a mistake of lord Coke, who in his comment on
tills statute supposes the word writing to be inserted in the latter part of tliis clause,
after the words any obligation or bill obligatory; whereas it is not so, for the statute
makes no mention o( writings, but only with respect to an interest in lands or annuities,
and consequently does not extend to a will of goods only ; and so was the case cited by
lord Coke in Dyer 302 b. which was of a will of a lease for years, and not of personal
goods only; but this case is expressly included in a later statute, viz. 2 Geo. 2. cap. 25.
which makes such a forgery felony without benefit of clergy.
HISTORIA PLACITORUM CORONA. 685
zance, because they have not the conusor's seal. Co. P. C. p. 171.
15 H. 7. 16. tf.(e)
Jl. writes and seals a letter to B. and subscribes it, B. cuts off the
lower part of the letter with the hand of ./?. and puts to it the seal of
his letter, and over it writes an acquittance, this is the forging an
acquittance. Co. P. C. ubi supra.
I come to the point of felony, having before stated what is a first
offense within this statute.
There must be a conviction of a first offense before the second
offense be committed, otherwise the second offense is not felony ;
and therefore if before conviction of forgery, J2. commits a
first and a second offense, the second offense is not felony [ 686 ]
within this statute.
And by conviction, I conceive, is intended not barely a conviction
by verdict, where no judgment is given, but it must be a conviction
by judgment.
And the indictment for a second offense must recite the record of
the first conviction, that it may appear to be a conviction of such a
forgery as is within the statute; for if it be not the indictment of
felony for the second offense fails.
And upon the evidence, tho the record of the first conviction ought
to be proved, yet the matter of the first conviction shall never be
re-examined, but must stand for granted, and the party is conckide^
touching the truth of the matter of the first conviction by the record
of that conviction.
If ./?. publish a false deed knowingly, and be convict upon this
statute for this offense, and after such conviction forges a deed, this
is a second offense, and felony within this statute, tho the publish-
ing be prohibited by one clause, and the forging by another, adjudged
P. 7. Jac. B. R. Booth's case,(/) Co. P. C.p. 172. for the words
are, if he commit any of the said offenses the second time: and so,
if he be convict of forgery, the publication of a forged deed after-
wards knowingly is felony, or if he be first convict of the forgery of
a court-roll, and after that forges an obligation or acquittance ; for
the second offense in any of the forgeries or publications is felony,
tho it be of a different kind, if the first or second offense be within
the statute (^)
The hearing and determining of the offense against this statute are
limited to the justices of assize, or 07/er and terminer.
(e) According to this case it should be quite the reverse; for it is there said, that the
statute merchant has the seal of the party which, the book says, is not requisite in the
statute staple.
(/) 13 Co. Rep. 34.
(g) But by 2 Geo. 2. cap. 25. the first offense is made felony without benefit of clergy,
and extends to all deeds, wills, bonds, writings obligatory, bills of exchange, promis-
sory notes, indorsements, or assignments of bills of exchange, or promissory notes, or
acquittances, or receipts for money or goods, if done with an intention to defraud any
person ; this act was made to continue for five years, and to the end of the next sessions
of parliament, and so expired the 15th oi May, 1735, but was revived and made perpetual
by 9 Geo. 2. ch. 18.
686 HISTORIA PLACITORUM CORONA.
This extends not to the justices of peace, for tho in the commission
of the peace tliere is a clause, nee non ad audiendum 4'
[ 687 1 terminandum, yet they being commissions of a several
nature, they are not comprised under the name of justices
oi oyer and tcrminer.{h)
But the court of king's bench may hear and determine these
offenses, for they are justices of oyer and terminer and more. Co.
P. C. cap. 41. JO. 103.
The offenders as to felony in this statute are excluded from clergy
and sanctuary.
The statute of 5 Ellz. cap. 20. concerning Egyptians. Vide quse
supra super stat. 1 <^' 2 P. 4' M.
By the statute of S Eliz. cap. 3. " No man shall bring, deliver,
send, receive, or take, or procure to be brought, delivered, sent, re-
ceived, or taken into any ship or bottom any manner of sheep alive,
to be carried or conveyed out of this realm, or out of Wales, or out
of Ireland, or any of the queen's dominions, upon pain of forfeiture
of all his goods, the moiety to the queen, the other moiety to the
informer, imprisonment, and loss of his left hand; and the second
offense to be felony.
" But no corruption of blood or loss of dower."
Justices oi oyer and terminer, gaol-delivery, or of the peace, have
power to hear and determine offenses.
The offender hath benefit of clergy, as well in case of felony, as of
cutting off the hand. Co. P. C. cap. 42.
The statute of 14 Eliz. cap. 5. concerning rogues and vagabonds,
is repeald by the statute of 35 Eliz. cap. 7. and settled in another
way by 39 Eliz. cap. 4. and therefore I shall refer it thither.
By the statute of 27 Eliz. cap. 2. " It shall not be lawful for
any Jesuit, seminary priest, or other such priest, deacon, or other
religious or ecclessiastical person whatsoever, born within this realm,
or any of the queen's dominions, hereafter to be made, ordaind or
professed by any authority or jurisdiction, derived, challenged, or
pretended from the see of Pome, to come into this realm or any of
the queen's dominions, (except as in that act is excepted,) under pain
of high treason.
"And any person, that after the end of forty days shall
[688] wittingly and willingly receive, comfort, aid, or maintain
such Jesuit, 4'C. being at "liberty and out of hold, knowing
him to be a Jesuit, seminary priest, d^'C. shall be adjud'ged a felon
without benefit of clergy."
By the statute of 31 Eliz. cap. 4. "If any having the charge or
custody of any armour, ordinance, munition, powder, shot, or of
habiliments of war of the queen, her heirs or successors, or of any
victuals provided for the victualling of any soldiers, gunners, ma-
riners, or pioners, shall for lucre, or gain, or wittingly, advisedly, and
of purpose to hinder or impeach her majesty's service, embezzle,
(h) Cro. Eliz. 87.
HISTORIA PLACITORUM CORONA. -6S8
purloin, or convey away the same, to the vahie of twenty shiUings
at one or several times, it shall be felony.
"The prosecution to be within a year after the offense: no cor-
ruption of blood, loss of dower, nor loss of lands, but during the life
of the offender.
"The prisoner allowed to make any lawful proof for his discharge.
Clergy not taken away."
By the statute of 35 Eliz. cap. 1. It is enacted, "That if any
person above the age of sixteen years, who shall obstinately refuse
to repair to some church or chapel, or usual place of common
prayer to hear divine service established by her majesty's laws or
statutes, and shall forbear to do the same by the space of a month
next after without any lawful cause, shall at any time after forty
days next after the end of this session of parliament, by printing,
writing, words or speeches, advisedly and purposely, go about to
persuade others to impugn her majesty's power in causes eccle-
siastical, or persuade others to forbear coming to church to hear
divine service, or receive the communion according to law, or to be
present at any unlawful conventicle or meeting, under pretense of
exercise of religion, contrary to her majesty's laws; or shall after
the forty days willingly join in, or be present at, such assemblies or
meetings under colour of exercise of religion, contrary to the laws of
this realm, then such person being thereof lawfully convicted shall
be committed to prison-, there to remain without bail or
mainprise, till he shall conform and yield to come to some f 689 ]
church or chapel, and hear divine service according to the
queen's laws, and make open submission and declaration of his con-
formity, as by the act is prescribed.
"And if such person shall not within three months, being required
by the bishop of the diocese or justice of peace of the county, where
he is convicted, come to some parish church to hear divine service,
he shall abjure the realm, as by that act is appointed.
"And if he shall refuse to abjure, or having abjured shall no go,
or else shall return without the queen's license, it is felony without
benefit of clergy.
" No loss of dower, corruption of blood, nor forfeiture of lands
longer than the life of the offender.
" Special punishment by forfeiture of \Ql. per mensem, for such as
relieve them, except father, mother, ^^c.
" Not to extend to women or popish recusants."
Tho it were formerly doubted, yet upon great consideration by all
the judges it hath been resolved, that this statute is in force.
But to make up the offense to be felony there are so many circum-
stances required, that it is difficult to have any legal conviction ac-
cording to this statute.
1. The party must be above sixteen years old. 2. He must obsti-
nately refuse to come to church, which obstinate refusal cannot be
without a request or monition to repair to church. 3. He must for-
bear to come to church for a month after such refusal without a rea-
689 HISTORIA PLACITORUM CORONiE.
sonable cause of absence. 4. He must do some of those acts limited
by the statute, as to dissuade coming to church, <^'C. or after that
month's absence be at an unlawful conventicle.
And all these things must be precisely charged in the indictment
and proved upon evidence, or otherwise no such commitment, or
abjuration, or felony can follow.
And therefore, altho many have been hastily convicted upon this
statute upon general indictments of not coming to church, and being
at an unlawful conventicle, yet never was any convict before
[ 690 3 me upon this offense, because these circumstances were either
not laid in the indictment, or not efiectually proved.
Besides, it is difficult to say, what conventicle upon pretense of
exercise of religion was in those times contrary to the laws of the
realm, unless mass, or by mass-priests, tho of late time it hath been
settled by special acts of this parliament, viz.{i)
The reason why popish recusants are exempted out of this act is,
because there is provision touching them in the next following, viz.
By the statute of 35 Eliz. cap. 2. " If any popish recusant not
having an estate in lands of twenty marks /;e7' annum, or goods to
the value of twenty marks, (other \hM\ feme-coverts) shall not repair
to his dwelling-house, <5'C. according to the act, and present himself
and his name to the minister and church- wardens of that parish; or
after their coming shall go five miles from their dwelling, and being
therefore taken shall not within three months after taking come to
church and make their confession of conformity, as in that act is
exprest, being thereunto required by a justice of peace, or by the
minister or curate of the parish, then such recusant being thereunto
required by two justices or coroner of the county shall abjure the
realm for ever; and if he refuse to abjure, or having abjured refnse
to go out of the realm, or being gone shall return without license, it
shall be felony without clergy."
By the statute of 39 Eliz. cap. 4. All former statutes against rogues
and vagabonds are repeald, and among other things it is enacted,
"That if any rogues shall appear dangerous, or will not be reformed
from their roguish life by the provisions of that act, it shall be law-
ful for two justices of the limit, whereof one of the Quorum, to com-
mit him to the house of correction till the next quarter sessions, and
then the major part of the justices may banish him out of
r 691 ] the realm and dominions thereof, to such place as shall be
assigned by six of the privy council, whereof the lord chan-
cellor or treasurer to be one, or condemn him to the gallies of this
realm; and if any such rogue so banished shall retiun again without
lawful warrant, it shall be felony, to be heard and determined in that
county of England or Wales where he shall be apprehended.
,(i) There is a blank here in the M.S. but the acts here meant are 16 Car. 2. cap. 4.
and 22 Car. 2. cap. 1, by which statute every assembly for religious worsliip of five or
more besides the family, in other manner than is allowed by the liturgy of the church of
England, is declared to be a conventicle contrary to law ; but these acts are now of no
force against protestant dissenters, by reason of the toleratioa act. 1 W. Sj M. cap. 18.
HISTORIA PLACITORUM CORON.E. 691
" But in this case the offender hath clergy."
Tliis act is continued by the statute of 1 Jac. cap. 25. 3 Car. 1.
cap. 4. and 16 Car. 1. cap. 4.
By the statute of 1 Jac. cap. 7. It is further added, " That such
dangerous and incorrigible rogues shall by judgment of the same
justices in the sessions be branded in the shoulder with the letter B.
and be sent to the place of his last dwelling; and if it cannot be
known, then to the place of his birth; and if such rogue be after
found offending in begging or wandering contrary to this statute, it
shall be felony without clergy, and tried in the county where he shall
be taken."
This act is likewise continued by 3 Car. 1. and 16 Car. 1. cap. 4.
This act doth not take away the punishment by the statute of
39 Eliz. cap. 4. but gives election to the justices in the sessions to
inflict either.
By the statute of 39 Eliz. cap. 17. " 1. Idle and wandering soldiers
or mariners, or idle persons wandering as soldiers or mariners. 2. Idle
or wandering soldiers coming from sea, not having a testimonial under
the hand of a justice of peace, setting down the time and place of his
landing, place of his dwelling and birth, and limiting a time for his
passage thither. 3. Or exceeding the time limited by his testimonial
fourteen days, unless he falls sick, if he be in truth a soldier or mari-
ner. 4. Every wandering soldier or mariner, or every person wan-
dering as a soldier or mariner counterfeiting his testimonial, or having
the same forged testimonial about him, knowing the same to be
forged, is a felon without benefit of clergy."
This offense may be heard and determined before justices
of assize, gaol-delivery, or of the peace, having power to ["692"}
hear and determine felony. No corruption of blood.
If a freeholder will take him into service for a year, and he becomes
bound by recognizance, ut per statute, no farther proceeding to be
against him; but if within the year he depart without license, it is
felony without benefit of clergy.
Continued by 3 Car. 1. cap. 4. and 16 Car. 1. cap. 4.
And thus far for felonies enacted in the time of queen EUzahefh.
In the time of king James these ensuing felonies were de novo
enacted.
By the statute of 1 Jac. cap. 11. " If any person within his ma-
jesty's dominions of England and Wales, being married, do at any
time after marry any person or persons, the former husband or wife
being alive, every such offense shall be felony, and the party offend-
ing shall receive such proceeding, trial and execution in such county
where he or she is taken."
This act hath five exceptions. 1. It shall not extend to such per-
sons, whose husband or wife shall be continually remaining beyond
the seas, for the space of seven years together. 2. Or whose husband
or wife shall absent him or herself in any place within the king's
dominions, the one not knowing the other to be living within that time.
3. Nor to any person divorced by any sentence had or to be had in
692 HISTORIA PLACITORUM CORONA.
the ecclesiastical court. 4. Nor to any person whose marriage hath
been or shall be declared void by sentence in the ecclesiastical court.
5. Nor to any person or persons for or by reason of any marriage
had or to be had within llie age of consent.
This felony not to make corruption of blood, or loss of dower, or
disherison of the heir.
1. Observables upon the body of the act.
Altho the second marriage be simply void, yet the parliament
thought it just to make it felony.
^1. takes ^. to husband in England, and after takes C. to husband
in Ireland, she is not indictable in England, because the offense was
committed out of this kingdom. But if Jl. marries a hus-
\_ 693 3 band in Ireland, and comes into England, and marries a
second husband, here it is felony. The former case was ac-
cordingly ruled at Newgate sessions. (A-)
A. takes B. to husband in Holland, and then in Holland takes C.
to husband, living B. and then B. dies, and living C sh(? marries D.
this is not marrying a second husband, the former being alive, for the
marriage to C. living B. was simply void, and so he was not her
husband; but if J5. had been living, this had been felony to marry
D. in England: ruled at Newgate sessions about 1648. the lady
Madison^s case.
The first and true wife is not to be allowed as a witness against
the husband; but I think it clear the second wife may be admitted
to prove the second marriage; for she is not his wife, contrary to a
sudden opinion delivered in July, 1664. at the assizes in Surrey, in'
Arthur Armstrong' s case; for she is not so much as his wife de
facto. Vide quse dixi supra super statu t. 3 H. 7. cap. 2. p. 661.
2. Observables touching the exceptions.
As to the first, If the husband or wife be beyond the seas seven
years, tho the party in England hath notice that he or she is living,
yet it is no felony, which appears by the second exception, where the
party is commorant in the king's dominions, if the party hath notice,
it is felony; notice there makes the offense, but not when the husband
or wife is beyond sea; and yet in the former case as well as the latter
the second marriage is void. Vide 22 E. 4. Consultation 5.
As to the .9eco?zrf exception : Suppose the first wife or husband be
absent in New-England or Ireland seven years, this is beyond the
seas, and so within the words of the first exception, and yet within
the king's dominions, and so not aided by the words of the second
exception, unless without notice; it seems in favorem vitse the words
within the king's dorninions must be intended within England^
Wales, or Scotland, to make both clauses consistent; but however
the isle of Wight is not beyond the sea within the first clause, because
infra corpus comitatus Southampton: so for Scilly, Liindy. Qusere
oi Guernsey, Jersey. : ..''.;,.
{k) 1 Sid. 171. Kel. 79.
HISTORIA PLACITORUM CORONA. 694
As to the third exception : certainly the divorce intended is not ti
vinculo matrimonii, for then without the aid of any proviso either
may freely marry ; but it must be intended of divorces a mensd <§'
thoro. P. 12. Car. \, B, R. Porter^s case, it was doubted, whether a
divorce causa saeviliae, were such a divorce as was within this ex-
ception, because it seemed ratlier to be a provisional separation for
the wife's safety and maintenance, than a divorce ; but it was never
resolved. Cro. Car. 461.(/)
If there be a divorce ii vinculo, and one of the parties appeals, the
this suspend the sentence, and possibly may repeal it, yet a marriage
pending that appeal is held to be aided by this exception. Co. P. C.
cap. 21. p. 89. But if the sentence of divorce be repealed, a mar-
riage after is not aided by this exception, tho there was once a
divorce.
As to the fifth exception : If either party be within the age of
consent, the exception extends to both : ^. of the age of twenty
years marries B. of the age of nine years, ^^. marries a second wife,
this is aided by the exception, as well as if B. had married a second
husband before agreement at her age of consent to the first marriage,
for either of them may resilire before they have both consented,
T. 42 Eliz. B. R. Babington's case, Co. P. C. cap. 27. p. 89.
But if a woman of twelve years marry a man of fourteen years,
a second marriage by either is felony, thb they are infants, because
as to matters of this kind, especially the business of marriage, they
are at this age adjudged of discretion. Sed vide supra, cap. 3. pie-
nius de hdc materia.
3. Observables touching the trial.
The trial to be in the county where the offender is apprehended,
is added cumulative; for he may be indicted where the second mar-
riage was, tho he be never apprehended, and so may proceed to out-
lawry, as likewise it may be done upon the statute of 7 H. 7. cap. 1.
of soldiers. Co. P. C. cap. 26. p. 87.
By the statute of 1 Jac. cap. 12. All former acts against conjura-
tion, inchantments, 4*c. are repeald, and it is enacted,
" 1. That if any person shall use, practise, or exercise
any invocation or conjuration of any evil or wicked spirit, f 695 J
"2. Or shall consult, covenant with, entertain, employ,
feed, or reward any wicked or evil spirit, to or for any intent or
purpose.
" 3. Or take up any dead man, woman, or child, out of his or their
grave, or any other place, or the skin, bone, or any other part of any
dead person, to be employed in any manner of witchcraft, sorcery,
charm, or inchantment.
" 4. Or shall use, practise, or exercise any witchcraft, sorcery,
charm, or inchantment, whereby any person shall be kild, destroyed,
wasted, consumed, pined, or lamed in his or her body, or any part
thereof.
(0 Kd. 27,
695 HISTORIA PLACITORUM CORONA.
"Every such person or persons, their aiders, abettors, and coun-
sellors, being thereof convict and attaint, shall suffer death as a felon
without clergy.
" 1. If any person shall take upon him by witchcraft, inchantment,
charm, or sorcery, to tell where any treasure of gold or silver may
be found in the earth or other secret places.
"2. Or where goods or things lost or stolen should be found or be
come at.
"3. Or shall use any sorcery, to the intent to provoke any person
to unlawful love.
"4. Or whereby any cattle or goods of any person shall be de-
stroyed, waisted, or impaired.
"5. Or to hurt or destroy any person in his or her body, iho the
same be not effected or done.
"First conviction one year's imprisonment without bail, and once
a quarter to stand two hours in the pillory, and confess his or her
fault.
"If after conviction he commit the like offense, and be convict
and attaint of such second offense, he shall suffer death as a felon
without clergy: but no loss of dower, corruption of blood, nor heir
disherited."
By the statute of 1 Jac. cap. 31. persons going abroad with a
plague-sore, felony. But this act is discontinued, as my lord Coke
saith, Co. P. C. p. 90. but 3 Car. 1 cap. 4. hath revived
\_ 696 ] or continued it to the end of the first session of the next
parliament; and by 16 Car. 1. cap. 4. it is continued till
repeald.
But it gives no forfeiture of lands, goods, or chattels.
By the statute of 3 Jac. cap. 4. "If any subject pass out of this
realm, to the intetit to serve any foreign prince, state, or potentate,
or shall pass over the seas, and there shall voluntarily serve any such
foreign prince, ^'c. not having before his or their passing taken the
oath prescribed in that act before the customer, comptroller of the
port, haven, or creek, or their deputy or deputies, or being a gentle-
man, or of higher rank, or hath born office of a captain, lieutenant,
or other place in the camp shall pass, 8j'c. before he hath taken the
oath, and given bond, 8;c. it is felony.
" The trial shall be in the county where the offense is committed,
viz. the place of his departure, tho that be but part of the offense,
and there they shall inquire of the rest of the offense committed
beyond sea, viz. his service there. (w)
" The offender hath his clergy.
" No corruption of blood nor loss of dower."
By the statute of 21 Jac. cap. 26. "All persons who acknow-
ledge or procure to be acknowledged any fine or fines, recovery or
recoveries, deed or deeds enrolled, statutes or recognizances, bail or
judgment, in the name of any person or persons not privy or con-
Cm) Co. P. C. p. 80. cap. 4.
HISTORIA PLACITORUM CORONA. 696
senting to the same, and being thereof lawfully convicted or attaint,
shall incur the penalties of felons without benefit of clergy.
" No corruption of blood nor loss of dower."
A bail taken before a judge, is not a bail within this statute
till it be filed of record; and if it be not filed, the acknowledging
thereof in another's name makes not felony, but a misdemeanor
only.(*)
The statute of 21 Jac. cap. 27. for murdering bastard children:
this I shall reserve to the title of evidence, Part II. cap. 39. quod
vide ibidem.
And thus far of felonies in the time of king James.
In the time of king Charles I. I find not any any new [ 697 J
enacted felony.
I therefore come to the time of king Charles II. (t)
(*) But this is since made felony by 4 4" 5 TF. 4" -M"*
(t) Here the manuscript breaks off, our author having- proceeded no farther; but to
render the work more complete, it is thought proper to subjoin an account of the several
felonies which have been enacted since that time, by which it will appear, that latter
times have been no less fruitful in multiplying capital punishments, than former ones
were.
Felonies enacted in the time of King Charles II.
I. Transporting wool,
■ By 13 <Sf 14 Car. 2. cap. 18. it is made felony to transport wool out of England,
Wales, or Ireland; but hy 1 S( 8 W. 3. cap. 28, the making- it felony is repeald, and it is
reduced to a misdemeanor, which by that and later statutes is subjected to severe
penalties.
II. Covenlry^s act concerning dismembring or disfiguring.
By 22 S( 23 Car. 2. cap. 1. if any siiall of malice forethought, and by lying in wait,
unlawfully cut out or disable the tongue,
Put out an eye,
Slit the nose,
Cut off a nose or lip.
Or cut off or disable any limb or member of any other person, with intention to maim
or disfigure, they, their counsellors, aiders, and abetters, shall be guilty of felony without
benefit of clergy.
Attainder on this statute shall not work any corruption of blood or forfeiture.
Sir John Coventry, a member of the house of commons, had a little before been as-
saulted in the street, and his nose slit, which gave occasion to the making this act,
which from him was called Coventn/s act.
Upon this statute. Coke and Woodburne were condemned and executed at Suffolk
assizes, 8 Geo. I. for slitting the nose of Mr. Crispe. See State Tr. Vol. \l. p. 212.
III. Maliciously burning stacks of corn, or killing cattle in the night.
By 22 4" 23 Car. 2. cap. 7. Whoever shall in the night-time maliciously, unlawfully,
and willingly, burn any stacks of corn, hay, or grain, barns or other houses, or buildings,
or kilns.
Or shall in the night-time maliciously, unlawfully, and willingly, kill or destroy
697 HISTORIA PLACITORUM CORONA.
horses, sheep, or other cattle, shall be guilty of felony ; but liberty is given the offender
to chuse transportation for seven years.
Attainder on this act shall not work corruption of blood, loss of dower, or disherison
of the heir.
During the short reign of king James II. I do not find any new
enacted felony.
Felonies enacted in the time of King William III.
I. Personating bail.
By 4 W. tSf JVL caip. 4. Personating another before those who have authority by that
act to take bail, so as to make him liable to the payment of any sum of money in that
suit or action, is made felony.
[ 698 ] II. Counterfeiting lottery tickets.
By 5 tSf 6 W. <Sf M. mp. 7. 8 Ann. cap. 4. 12 Ann. sess. Leap. 2. sess. 2. cap. 9. 5 Geo. 1.
cap. 3 ^ 9. 7 Geo. 1. cap. 20. The forging or counterfeiting the tickets in the several
lotteries appointed by the said acts,
Or standing orders or receipts given out in pursuance of the said acts,
Or altering the number or principal sum thereof,
Or counterfeiting the hand of any person to such order,
Or the bringing any such forged ticket, SfC. (knowing it to be so) to the managers,
Sfc. with intent to defraud his majesty or any contributor, is made felony without benefit
of clergy.
III. Counterfeiting the stamps.
By 5 ^ 6 W. Sf M.cap. 21. 9 <^ 10 IF. cap. 25. 8 Ann. cap. 9. 9 Ann. cap. 1 1 <^ cap. 23.
10 Ann. cap. 19. 12 Ann. sess. 2. cap. 9. 5 Geo. 1. cap. 2. Forging any of tlie stamps
appointed by the said acts,
Or counterfeiting or resembling the impression of the same upon any vellum, parch-
ment, or paper.
Or uttering, vending, or selling any vellum, S[C, with such counterfeit impression,
knowing the same to be so.
Or using any stamps or marks with intent to defraud the crown of the stamy duty, is
made felony without benefit of clergy.
IV. Counterfeiting the seal of the Bank, bank-notes, S,'c.
By 7 & 8 TF. cap. 31. § 36. 8 & 9 W. cap. 19. § 36. and 11 Geo. 1. cap. 9. The forg.
ing the common seal of the bank,
Or any bank-bill or bank-note,
Or erasing or altering any such bill or note.
Or altering or erasing any indorsement, or any bank-bill or note,
Or tendering the same in payment, knowing the same to be forged, erased, or altered
is made felony.
V. Counterfeiting exchequer-bills.
By 7 & 8 W. ccrp. 31. § 78. 9 W. cap. 2. § 3. 5 Ann. cap. 13. 7 Ann. cap. 7. 9 Ann.
cap. 7. 11 Geo. 1. cap. 17. § 12. The counterfeiting exchequer bills,
Or any indorsement thereon,
Or tendering sucli counterfeit bills or indorsement, knowing the same to be counter,
feit, with intention to defraud his majesty, or any other person, is felony without benefit
of clergy.
VI. Blanching copper, 4'C.
By8&.'9 W. cap. 25. Blanching copper for sale, or mixing blanched copper with
silver.
Or knowingly buying or selling, or offering to sale such, or aiiy other malleable mix-
ture of metals or minerals heavier tlian silver, and wearing like gold,
Or receiving, paying, or putting off any counterfeit, or unlawfully diminished milled
money (not cut in pieqcs) at a lower rate than it imports, or was coined or counterfeited
for, is made felony.
HISTORIA PLACITORUM CORONA. 698
Felonies enacted in the time of Queen Anne.
I. Wilfully destroying any ship.
By 1 Ann sess. 2. cap. 9. and 4 Geo. 1, cap. 12. It is felony for any captain, master,
mariner, or other officer belonging- to any ship wilfully to cast away, burn, or destroy
the said ship, or procure the same to be done to the prejudice of the owner.
Or for the owner, captain, Sfc. to do the like, to the prejudice of any underwriter of
the policy of insurance, or of any merchant, who shall load goods therein.
II. Receiving stolen goods.
By 5 Ann. cap. 31. Receivers of stolen goods, knowing them to be stolen, are declared
guilty of felony, as accessaries.
III. Assaulting a privy counsellor in the execution of his [ 699 1
office.
By 19 Ann. cap. 6. It is felony without benefit of clergy to assault, wound, or attempt
to kill a privy counsellor in the execution of his office.
The occasion of making this act see supra p. 230. in notis,
IV. Counterfeiting the seal of the South-Sea company, South-Sea
bonds, Si'C.
By 9 Ann. cap. 21. It is felony without benefit of clergy to forge or counterfeit the
common seal of the South Sea company,
Or to forge, counterfeit, or alter any of their bonds.
Or knowingly to tender, or offer to dispose of the same, with intent td defraud any
person, see 6 Geo. 1. cap. 11.
V. Making an hole in a ship, or stealing any pump from a ship.
By 12 Ann. cap. 18. made perpetual by 4 Geo. 1. cap. 12. The making any hole in a
ship in distress,
Or stealing any pump belonging to such ship, or aiding or abetting thereto,
Or wilfully doing any thing tending to the immediate loss of such ship, is made felony
without benefit of clergy.
Felonies enacted in the time of King George I.
I. Concerning riotous assemblies.
By 1 Geo. 1. cap. 5. (which is for the most part copied from an expir^ act of 1 Mar.
cap. 12.) if twelve persons or more, being unlawfully and riotously assCTnbled, shall so
continue together to the number of twelve for the space of one hour after proclamation
made to depart, such continuance is made felony without benefit of clergy ;
As also to oppose or hinder the reading the proclamation,
Or to continue to the nuiftber of twelve for one hour after such hinderance so made,
having knowledge thereof.
By the same act it is felony without benefit of clergy for any persons, unlawfully and
riotously assembled, with force to pull down, or begin to pull down any church, or chapel,
or building for religious worship allow'd by the toleration act, or any dwelling-house,
barn, stable, or other out-house.
II. Maliciously burning any wood or coppice.
By 1 Geo. 1. cap. 48. and 6 Geo. 1. cap. 16. It is felony for any person maliciously to
set on fire or burn any wood, underwood, or coppice, or any part thereof.
III. Returning from transportation, taking a reward for helping to
stolen goods, S,'C.
By 4 Geo. 1. cap. 11. If any offender ordered for transportation beyond sea shall return
to, or (by 6 Geo. 1. cap. 23.) be found at large in Great Britain or Ireland, without some
lawful cause before the expiration of his term, without licence from his majesty, he shall
be guilty of felony without benefit of clergy.
By the same statute, whoever shall take any money or reward under pretence of help-
ing any person to stolen goods, unless he apprehend the felon, and give evidence against
699 HISTORIA PLACITORUM CORONA.
him at his trial, shall be guilty of felony, and shall suffer in the same manner as if he
had stolen them himself, with such circumstances, as the same were stolen.
Upon this clause, Jonathan Wild was executed, 10 Geo. 1.
IV. Counterfeiting army debentures.
By 5 Geo. 1. cap. 14. 6 Geo. 1. cap. 17. 9 Geo. 1. cap. 5. It is felony without benefit of
clerjfy for any person to alter or counterfeit any army debentures,
Or fraudulently to issue out any other than for the sums certified by the commissioners.
r 700 ] V. Counterfeiting South-Sea receipts or warrants, Sj-c.
By 6 Geo. 1. cap. 11. It is made felony without benefit of clergy for any
one to alter, forge, or counterfeit any South-Sea receipt for a subscription to the stock,
Or warrant for a dividend.
Or any indorsement or writing thereon.
Or knowingly to tender or offer to dispose of the same with intent to defraud any one.
VI. Counterfeiting the seal of the two assurance companies.
By 6 Geo. 1. cap. 18. The counterfeiting the corporation seal of either of the assurance
companies, now known by the names of the Royal Exchange and the London Assurance,
Or altering any policy, bill, bond, or other obligation under their common seal, .
Or knowingly paying away such policy, &c. or demanding the money thereon, is
felony without benefit of clergy.
VII. Maliciously spoiling the garments of any persons in the streets.
By 6 Geo. 1. cap. 23. The wilful and malicious tearing, spoiling, cutting, burning, or
defacing the garments or clothes of any person in the streets or highways is felony.
VIII. Smuggling.
By 8 Geo. 1. cap. 18. If any persons above the number of five carrying offensive arms,
or being in disguise, shall be found passing with foreign goods from any ship without
due entry and payment of the duties.
Or shall forcibly resist any officer of the customs or excise in the seising run goods,
they shall be guilty of felony.
IX. Counterfeiting the name of, or personating a proprietor for
transferring stock, or receiving dividends.
By 8 Geo. 1. cap, 22. To counterfeit the name of any proprietor,
To forge or ^procure to be forged, or wilfully to act and assist in forging a letter of
attorney, or otner instrument to transfer any share in the capital stock of any corpora-
tion established by act of parliament.
Or to receive any annuity, or dividend attending such share,
Or falsly to personate any proprietor for the purposes aforesaid, is felony without bene-
fit of clergy. •
X. The like as to annuity orders.
By 9 Geo. I. cap. 12. To do the like with relation to any annuity order, is made felony
without benefit of clergy.
XL The Waltham-hlack act against appearing in disguise in any
forest, 4'C. unlawfully hunting deer, robbing any warren, destroy-
ing fish, maiming cattle, destroying trees in any avenue, 4'C. firing
houses, stacks of corn, <5'C. maliciously shooting at any person,
sending threatening letters, Sfc.
By 9 Geo. 1. cap. 22. continued by 12 Geo. 1. cap. 30. and 6 Geo. 'i. cap. 37. till
Sept. 1. 1736, and from thence to the end of the next session of parliament, it is made
felony without benefit of clergy, for any person armed with offensive weapons, and hav-
ing his face blacked, or otherwise disguised, to appear in any forest, chase, park, &,c. or
in any high road, open heath, common, or down,
Orunlawfuily and wilfully to hunt, wound, kill, or steal any red or fallow deer,
Or unlawfully to rob any warren, ^c.
Or to steal any fish out of any river or pond, '
HISTORIA PLACITORUM CORONiE. 700
Or unlawfully to break down the head or mound of any fish-pond, whereby the fisli
shall be lost or destroyed,
Or unlawfully and maliciously to kill, maim, or wound any cattle,
Or to cut down, or otherwise destroy any trees planted in any avenue, or growing in
any garden, orchard, or plantation for ornament, shelter, or profit.
Or to set fire to any house, barn, or out-house, hovel, cock, mow, or stack of corn,
straw, hay, or wood.
Or maliciously to shoot at any person in any dwelling-house or other place.
{Upon this clause Edward Arnold was convicted at Surrey /en<-assJ2es, 1723-4, /or
shooting at lord Onslow,)
Or knowingly to send any letter without any name, or signed with a ficti-
tious name, demanding money, venison, or other valuable thing, f 701 1
Or forcibly to rescue any person being lawfully in custody for any of the
offenses before-mentioned.
Or to procure any person by gift or promise of money, or other reward, to join in any
such unlawful act.
No attainder on this act shall work corruption of blood, loss of dower or forfeiture.
This act was occasioned by the devastations and injuries then lately committed in a
violent manner by several persons near Waltham, who had appeared blacked and dis-
guised in the chases, forests, Sfc. and was from thence called the Waltham-blach act.
XII. Concerning the pretended privilege of the Mint in Southwark.
By 9 Geo. 1. cap. 28. If any person shall within the place commonly called the Mint^
or the pretended limits thereof, wilfully obstruct any person serving or endeavouring to
serve or execute, any will, warrant, or legal process, S^c.
Or shall assault, or abuse any person for having so done, whereby he shall receive any
damage or bodily hurt;
Or shall oppose any officer of justice, or person aiding such officer in the execution
of any writ, warrant, or process, S^c, or shall be abetting thereto;
Or shall rescue, or knowingly harbour or conceal any prisoner taken upon such pro-
cess; '
Or shall presume to exercise any unlawful jurisdiction for supporting the pretended
privilege within the said place, such offender shall be adjudged guilty of felony, and be
transported for seven years.
And if any person wearing any vizard, S^c. or having his face'or body disguised, shall
join or abet any riot, or oppose the execution of any legal process, S^c. within the limits
aforesaid, such offender shall be adjudged guilty of felony without benefit of clergy.
And every person aiding or abetting, concealing or harbouring such disguised person,
shall be adjudged guilty of felony, and be transported.
XIII. The Uke with respect to Wapping, Stepney, 4*c.
By 11 Geo. 1. cap. 22. The same provision is made against most of the said offenses,
if committed within the hamlet of Wapping, Stepney, or any other place within the bills
of mortality, whereof presentment shall have been made by the grand jury at a general
or quarter-sessions.
XIV. Counterfeiting East-India bonds, or indorsements thereon, or
on South-Sea bonds, ^'c.
By 12 Geo. 1. cap. 32. Whoever shall forge or counterfeit, or wilfully assist in forg-
ing or counterfeiting the name or hand of the accountant-general of the court of chancery,
the register, clerk of the court, report-oflace, or any of the cashiers of the bank of Eng-
land, to any certificate, report, (^c.
Or any East-India bond or indorsement thereon;
Or any indorsement on any Soulh-Sea bond, shall be adjudged guilty of felony without
benefit of clergy.
XV. Assaulting any master wool-comber, weaver, maliciously break-
ing tools, (§'C.
By 12 Geo, 1. cap. 34. If any person shall assault any master wool-comber, or master .
weaver, or other person concerned in the woollen manufacture, whereby he shall receive
701 HISTORIA PLACITORUM CORONJ^.
any bodily hurt; for not complying with any such illegal by-laws, Sfc. as in the act men-
tioned,
Or shall write or send any threatening letter to such person for not complying with
such illegal by-laws, or with any demands or pretenses of his workmen, or others em-
ployed by him in the woollen manufacture, he siiall be deemed guilty of felony, and be
transported for seven years.
If any person shall maliciously cut or destroy any woollen goods in the loom or on
the rack;
Or shall destroy any rack on which such goods are hanged in order to dry;
Or shall wilfully break any tools used in the making such woollen goods, not having
the consent of the owner so to do;
Or shall break or enter by force into any house or shop by night or by day for any
of the purposes aforesaid, such offender shall be adjudged guilty of felony without benefit
of clergy.
r 702 "I Felonies enacted in the time of King George II.
I. Maliciously breaking down turnpikes.
By 1 Geo. 2. cap. 19. 5 Geo. 2. cap. 33. 8 Geo. 2. cap. 20. It is made felony without
benefit of clergy for any person maliciously to break down or destroy any turnpike-gate
or other fence belonging to such turnpike erected to prevent passengers from passing by
without paying the toll, or forceably to rescue any person lawfully in Custody for such
offense.
Attainder by this act not to work corruption of blood, loss of dower, or forfeiture.
II. Forging of deeds, stealing bonds, S,'C.
By 2 Geo. 2. cap. 25. The forging or counterfeiting, or procuring to be forged or
counterfeited any deed, will, bond, writing obligatory, bill of exchange, promissory note
for payment of money, tlie indorsement or assignment of any bill of exchange, or pro-
missory note for payment of money, or any acquittance or receipt for money or goods,
or knowingly to utter or publish as true any forged deed, SfC, with intention to defraud
any person, is felony without benefit of clergy.
By the same statute to steal or take by robbery any bonds, notes, orders, tallies, Sfc.
is felony of the same nature, and in the same degree, as if the money secured by such
bonds, Sfc. and remaining unsatisfied, had been stolen or taken by robbery.
This act was made to continue only for five years from 29 June 1729, and from thence
to the end of the then next sessions of parliament.
III. Stealing lead, iron, <§'C. fixt to anyhouse or building.
By 4 Geo. 2. cap. 32. To steal, rip, cut, or break with intent to steal any lead, iron
bar, iron gate, iron palisado, or iron rail fixed to any dwelling-house or other building
used with such dwelling-house, or fixed in any garden, orchard, court-yard, fence or
outlet belonging to any dwelling-house or other building is felony, and so it is in the
aiders and abetters; and such as shall buy or receive such lead or iron, knowing the
same to be stolen.
IV. Assaulting with an intent to rob.
By 7 Geo. 2. cap. 21. It is made felony with any offensive weapon or instrument un-
lawfully and maliciously to assault, or by menaces, or by any forceable or violent man-
ner to demand any money, goods or chattels of any person, wiih a felonious intent to
commit robbery on such persiin.
V. Counterfeiting the acceptance of a bill of exchange, or any ac-
countable receipt.
By 7 Geo. 2. cap. 22. If any person shall falsly make, alter, forge, or counterfeit, or
cause or procure to be counterfeited, iSfc. any acceptance of any bill of exchange, or the
number, or principal sum of any accountable receipt, for any note, bill, or other security
for payment of money, or any warrant or order tor payment of money, or delivery of
goods, with intent to defraud any person, or shall witli such intent knowingly utter or
publish the same as true, he shall be deemed guilty of felony.
. [For the continuation of felonies enacted since the 7 Geo. 2. see p. 711, Sfc]
HISTORIA PLACITORUM CORON:^. 703
CHAPTER LXV.
CERTAIN GENERAL OBSERVATIONS CONCERNING FELONIES BY ACT
■ OF PARLIAMENT.
I. Generally, if an act of parliament be, that if a man commit
such an act, he shall have judgment of life and member, this makes
the offense felony, and this was ordinarily the clause used in antient
statutes, as TVesim. 2 cap. 34., {a) 14 E. 3. cap. 10. 2S E. 3. cap. 3.
13 /?. 2. cap. 3. <S-c. Co. P. C. cap. 29. ;?. 91.
2. And consequently there ensued thereupon corruption of blood,
eschete to the lord, and the wife's loss of dower.
3. But yet there may be and frequently are in acts of parliament,
making new felonies, provisions, that there shall be no corruption of
blood, disherison of the heir, or loss of dower; and this is done
sometimes by enacting words, as in 1 Jac. cap. 31. for going abroad
with a plague-sore, sometimes by a proviso, that it shall not extend
to corruption of blood, loss of dower, 8rc. as 8 E/iz. cap. 3. 5 Eliz.
cap. 14. and sometimes by the words saving to the ivife her dower,
and to the heir his inheritance, as upon the statute of 1 Jac. cap. 12.
for witchcraft. •
.4. But notwithstanding such a clause, the king shall have the
forfeiture of his lands during his life, and also his goods, for no
eschete can come to the lord, where the inheritance is saved to the
heir.
5. But by a special clause, forfeiture of goods as well as of lands
may be provided against, as in the act of 1 Jac. cap. 31. of going
out with a plague-sore. Co. P. C. cap. 6. p. 47. and cap. 28. p. 90.
6. A saving or exclusion of corruption of blood doth
virtually make the heir inheritable, and saves also the [704 3
"woman's dower. Co. P. C. cap. 28. super statut. 1 Jac.
cap. 31.
7. By an act making a new felony, clergy is not excluded from
the offender, without special words. Co. P. C. cup. 19. p. 73. super
statut. 8 //. 6. cap. 12. against stealing records.
8. In all acts making a new treason, felony, or misprision of trea-
soin, peers are to have their trial by their peers, tho no special clause
enacting it. Co. P. C. cap. 21. p. 89. super statut. 1 Jac. 6. cap. 11.
for marrying two husbands.
9. An act making any offense to be a felony, tho it speaks not of
accessaries before or after, yet they are impliedly contained. (6)
10. Nay, altho the statute makes an offense to be felony in them
that commit it, their counsellors, procurers, and abetters, to be felons,
and speaks nothing of accessaries after ; yet by the opinion of my
(«) See 2 Co. Instil, p. 434. (6) Co. P. C. p. 59.
VOL. I. — 58
704 HISTORIA PLACITORUM CORON/E.
lord Coke, receivers and accessaries ofler are also virtually implied,
as in the statute of Westni. 2. in rape, Co. P. C. cap. 19. p. 72. upon
the statute of 3 H. 7. cap. 2. for carrying away women, Co. P. C.
cup. 12. p. 61. upon the statute of 5 //. 4. cap. 4. against multipli-
cation, Co. P. C. cap. 20. p. 74. upon the statute of 1 Jac. cap. 12.
of witchcraft, Co. P. C cap. d. p. 45. in fine, tho Stamford be of
another opinion. (c)
11. An act, that makes an offense by name, as rape, <§'c. to be
felony, virtually makes all that are present, aiding, and assisting
principals, tho one only doth the fact, tho as to point of clergy in
some cases it differs : de quo posted.
12. An act, which makes the offender, his counsellers and abet-
ters, guilty of felony, yet regularly, mak^s not the counsellers, pro-
curers or abetters principals, unless present,, but, if they be absent,
leaves them in the condition of accessaries before., as upon the
statute of 1 Jac. cap. 12. of witchcraft, and other statutes of that
kind, unless in express words it makes them all principals, as is done
by the statute of 3 H. 7. caj). 2. Co. P. C. cap. 12. p. 61. the only
instance of that kind.
13. In an act limiting a second offense to be felony, but
["705] the first only a misdemeanor, there must be two things to
make the second offense felony, viz. 1. A judgment given
for the first offense. 2. The second offense must be conmiitted after
the judgjpent for the first, otherwise it makes not felony, as in case
of forgery upon the statute of 5 Eliz. cap. 14. Co. P. C. cap. 75.
p. 172. ,(r/) and npon the statute of 1 Jac. cap. 12. of witchcraft.
Co. P. C. cap. 6. p. 46. 2 Co. Instil, p. 468.
14. Therefore where those and some other statutes speak of a
second offense after a conviction of a former, it is not intended
barely of a conviction by verdict, unless judgment be given upon it.
Co. P. C.p.46.
15. An act jnaking a felony, and limiting it to be tried in the
county where the party is apprehended, unless there be negative
words, and not elsewhere, is but cumulative, and he may be indicted
where the offense was committed, as upon the statute of 1 Jac. cap.
11. marrying a second husband or wife, Co. P. C. cap. 21. p. 88.
and upon the statute of 7 H. 7. cap. 1. and 3 H. 8. cap. 5. soldiers
departing. Co. P. C. cap. 26. p. 86, 87.
16. A second statute enacting the same offense to be felony, that
was so enacted before, with some alterations is but cumulative, and
no repeal of the former act; as the statute of 3 H. 8. cap. 5. of soldiers
making their departure without the licence of the king's lieutenant
felony (where the act of 7 H. 7. cap. 1. makes it felony, if without
the captain's licence,) yet repeals not the former, because it is but an
affirmative act; so 39 Eliz. cap. 4. for banishing incorrigible rogues
is not taken away by 1 Jac. cap. 7. wliich adds burning in the shoul-
der, and sending them to their last habitation.
(c) Stamf. P. C. fol. 44. 6. (d) Vide supra, p. 685.
HISTORIA PLACITORUM CORONA. 705
17. If one statute be grat'ted upon another statute relative to it in
order to the better execution of a former statute, if the former be
repealed, the latter is thereby virtually repealed, as the statutes of
Labourers{e) being repealed by 5 Eliz. cap. 4. the statute of
3 H. 6. cup. 1. making congregations of masons feJons is [706]
thereby repealed. (/) Co. P. C. cap. 35. p. 49.
IS. If a statute be but temporary and discontinued, and then re-
vived by a new act of parliament; or if a statute be made touching
a new felony, and repealed and re-enacted, the conclusion of the
indictment contra formam statutorum is good; but the best way is
to conclude contra formam stutut. in hnjiism,odi casii edit. S,'provis.
with an abbreviation, because in construction of law it shall be taken
ehher statuti or statutorum, which may best maintain the indict-
ment in point of law. (^)
0 19. A statute making a new felony of an offense, that consists of
an act partly in the kingdom, and partly out of tlie kingdom, and
limiting it to be tried where the offense is committed, shall be con-
strued to be where that part of the offense is committed, that is with-
in the kingdom, as upon the statute of 1 Jac. cap. 2. passing the sea,
and serving a foreign prince, without taking the oath of obedience,
shall be tried in that county where the part was that he passed the
sea. Co. P. C. cap. 23. p. SO.
20. An act making a new felony extends not to an infant under the
age of discretion, viz. fourteen years old ; but if he be of that age, it
binds him. Plowd. Com. 465. a. Eyston and Stud's case.
21. Whether the word king^ is personal to the then king, or extends
to his successors in acts of parliament? It is true in grants of judicial
or ministerial offices that concern administration of justice, as judges
or sheriffs, a grant of such an office, durante beneplacito regis, is
simply determined by the king's death. 12 Co. Rep. p. 4S. Nay
the grant of a judicial olBce by the king quam diu se bene gesserit,
tho it be a freehold, determines by the king's death; for it is personal
to the king that grants them; but it is held, that the grant of offices
of another nature, or of lands durante beneplacito nostro
doth not determine by the death of the king without some [ 707 ]
act or declaration by the successor to determine it. 12 Co.
Jiep. p. 48,49.
But as touching acts of parliament, regularly the word kiyig ex-
tends to his successors, (A) and therefore the statutes of 11 ^. 7. cap.
IS. for service in the king's wars, 7 H. 7. cap. 1. for departing of
soldiers, tho the preamble seems personal to that king, yet (it hath
been ruled) to include successors, Co. P. C. cap. 26. p. 86. Bi/. 211. a.
so, the statute of 23 H. S. cap. 4. for brewers, Noi/'s Pep. p. 118.
(e) 23 E. 3. cap. 1. and 25 E. 3. cap. 1.
(/) For this last mentioned statute recites as the ground thereof, tiiat the congrega-
tions of masons had violated the good effects of the statutes of Labourers.
(g) But this piece of our author's advice cannot now be observed, because by the late
acts of 4 Geo. 2. cap. 2G. Sf 6 Geo. 2. cup. 6. all indictments, informations, &c. are re-
quired to be in words at length, and not abbreviated.
(A) Vide supra, p. 100.
707 HISTORIA PLACITORUM CORONA.
Chalchman and Wright. So Poyning^s law, 10 H. 7. in Ireland
for the manner of passing acts of parliament, tho that act speaks only
of the king, without successors, yet it extends to his successors, and
so declared 3 <§• 4 P. <§• M cap. 4. in Hibernid, 12 Co. Rep. 109. b.
110. a.
And altho the power of altering the laws of Wales was a great
trust reposed in H. 8. by the statute of 34 H. 8. cap. 26. for Wales,
and was thought by some to cease by his death, 12 Co. Rep. p. 48.
yet they durst not rest upon that, but it was specially repealed by the
statute of 21 Jac. cap. 10.
A statute made to continue during the king's pleasure, doth not
determine by his death, unless it be specially relative to the person
of the king, as during the pleasure of the king that noiv is, or ac-
cording to some dicti domini regis, M. 24 Eliz. Maoris Rep. n. 311.
p. 176. jjer Mede ; and therefore it seems that in such case the sue*
cessor must make some proclamation or declaration of record to de-
termine it, before it be determined; as upon the statute of 8 H. 6.
cap. 11. for the manner of taking apprentices in London, which was
in truth the case in Moor, n. 311. but the statute of 5 Eliz. cap. 4.
repealing all acts touching apprentices and labourers, and making a
special provision to save the customs of London, hath quieted that
question.
By the statute of 8 H. 6. cap. 24. it is enacted, "That no English-
man sell to any merchant alien any merchandize, but for ready pay-
ment." By the statute of 9 H. 6. cap. 2. it is enacted, " That notwith-
standing the former statute they may sell for six months time, and
this ordinance shall endure so long as shall please the king." It is
held 10 H. 1.1. b. that this statute remains as a suspension
r708] of the former act of S H. 6. notwithstanding the death of
Henry VI. till repealed by proclamation by his successor.
And yet in case of capital offenses limited, and de novo enacted by
act of parliamenl to continue during the king's pleasure, it is not safe
to proceed upon them after the king's death ; and tho in matters of
misdemeanors such continuance is limited by acts of parliament, yet
I do not remember any such kind of limitation in acts enacting capi-
tal ofienses, but they are either perpetual, or limited to continue for
a time certain, as seven years, ^-c. or till the end of the next session
of parliament, S^c.
22. An act of parliament, that makes an offense felony, doth con-
sequently introduce the punishment of concealing, that is, misprision
of felony; and every offense made felony by act of parliament, in-
cludeth misprision, and the party may be indicted of misprision of
felony, and thereupon fined and imprisoned, 2 R. 3. 10, 11. And
yet in Co. P. C. p. 133. upon the statute of 33 H. 8. cap. 1. of false
tokens, it is said, where a corporal punishment only is inflicted by
act of parliament, the party cannot be fined and imprisoned, which
is to be understood with two cautions, viz. 1. Where the indictment,
4'C. is grounded for the same offense contained in the statute, and
therefore it crosseth not the case of 2 R. 3. for there he was indicted
HISTORL\ PLACITORUM CORONA. 708
for tnisprision, and not for felony. 2. Where it was an offense at
common law, there if the indictment be grounded barely at common
law, he may be fined and imprisoned, tho the statute limit a cor-
poral punishment, as in case of false tokens he may be indicted as a
cheat. (*)
(*) Here our author had wrote the title of another chapter Touching Piracy, but did
not proceed in it, perhaps because he had referred what he thought needful tcr be said oa
that head to the chapter oi^ Clergy, Part II. cap. 50.
709
ADDENDA IN NOTIS.
Ad. p. 270. I. 19. Rot. Pari. II. H. 6. n. 43. A Roy noslre Sover eigne Seigneur Be-
sechen humbly your communes of this present parlement, that where one JoAn Carpenter
o? Bridham in the s\\\Te of Sussex husbondnian, the vii of Ff cerer the yere of youre noble
reigne the viii, saying to Isabell his wyfF, that was of the age of xvi yere, and hadde be
marled to hym but xx dayes, that they wold goo togedre on pilgrernage, and made to
arraye hir in hir best arraie, and toke liir with hym fro the said tonne of Bridhain to
the toune of Stoiighton in the said shire, and there with woode he smote the said Isabell
his wilf on the hede that the brayne wende oute, and with his knyffgaf hir many other
dedly woundes, and streped hir naked out of hir clothes, and toke his knyff and slytte
hir belly from the brest doune, and toke hir bowels oute of hir body, and loked if she were
with child. And thus the said Jo/i« murdrid horibly his wift', of the which ho'ribly niur-
dre the Thursday next after the fest of Seint Ambrose the bishop, the yere of youre
reigne by foreseid, tiie said Jo//w was endited byfore Sir John Bohun Kt. Sir Henry Hi/see
Kt. and Wit. Sydney }'our commissioners of your pees withinne the shire foreseid, and
processe made out upon the same enditement according to your lawes till the same John
Carpenter was outlavycd of the said mourdnre, and now gratiously for the same cause
arreste, and in your prisone called the king's bench: Please hit to youre hie right wise-
nesse to considere the horrible murdure foreseid, and by auctorite of this your hie court
of parliament to ordeine, that the said Juhn Carpenter may be juged as a traytour. and
that your jugges have power to give judgement upon him to be drawed and hanged as a
traytour, in eschewyng of such horrible mourdurs in tyme corny ng, savying allwayes to
tlie lords of the see eschetes of his lands after yere, day and wast.
Pur ceo qil semble encountre la libertee de Seint Esglisfi, le Roy s' advisera.
Ad. p. 384. 1. 6. after electa r. scripturce sacrcB contraria, for so Grosled exprest him-
self, altho these words are omitted in our author's M.S. See Mat. Paris, p. 874.
Ad p. 396. not\ (n) in Jine. The truth is, the writ for burning Satctre was indeed a
special act of parliament made for that purpose, for so is a writ teste''d per regem Sf con-
cilium in parliamento to be intended. See the prince's case. 8 Co. Rep.fol. 19. a. Nor
do 1 find any footsteps of heresy being punished capitally before this statute and that of
2 H. 4. The notion that the writ de hceretico comburendo lay at common law seems to be
a mistake, for tho that writ be in the printed register, yet it is not in the antient manu-
script registers; see State Tr. Vol. 11. p. [275]. That this was not the antient punishment
of heretics in England; see Mat. Paris, p. 105. ft>r Braclon [Lib. III. de corona cap. 9]
Briiton [cap. 9.] Fleta [Lib. I. cap. 29 t^- 37.] speak .n(^ of heretics, but of apostates and
infidels: And tho by the imperial law some particular heresies were punishable with ^eath :
see Cod. Lib. I. tit. 5.1. 11, 12, ^c. yet it does not appear, that even in the empire he-
resy in general was punished capitally, till tiie constitution of Frederic II. about the year
1234, which indistinctly adjudges all heretics to tiie flames: but in England the usual
punishment seems to have been imprisonment, and even this was not allowable, tho he
were hareticus contumax, before the pretended statute of 5 R. 2. without the king's spe- •
cial license, an instance whereof is in Rymer''s Fmdera, Tom. VI. p. 651. Rex venerabili
episcopo Londonim salutem. Quia accepimus per inqnisitionem vcstram, quod Nichohius
de Drayton coram vobis congrue convictus' &- pro h^retico adjudicatus existit,
quodque in suo errore nephando animo induralo nequiter perseverans, ad fidei catholicce
unitatem redire non curavit nee curat in prajsenti, licet scepids ad hoc excitatus «& in-
ductus, sententiam majoris excommunicationis in hac parte incurrendo. Cum igitur
sancta mater ecclesia ita tales hcereticos perseqnitiir, ne suo veneno alios inficiant, ut in
carceribus custodiri praecipiat. Super quo nobis f^npplicaslis, Slc. Nos supplicationi
vestrae prsedictae gratanl6r concedentes, ad ipsura Nicholaum hsereticum carcerali custo-
HISTORIA PLACITORUM CORONA. 709
diae ve?trrE mancipare, & ipsum in carcere vestro custodire faciendum, quousque dictum
errore(n suuin revocaverit, it ad fidei catholics unitatcni redire voluerit, quan-
tum in nobis est, licentiam concedimus specialem. Rot. l^at. 44. E. 3. p. 1. tn. f 710 1
23. doiso. . L J
Ad. p. 490. in fine. Placita coram jusliciariis ifinerantibus apiid crucem lapideam in
com. Midd. anno 2 E 1. incij.ierde 3. Rot. 13. in dorso. Seyton' Alice de Covale was
arraigned /no morte Johannes Lipertung, and pleaded, that she killed him se defendendo,
"eoquod burgavit domum suam; & de bono & male ponit se stiper patriam; &, xii jura-
tores dicunt, quod prsedicta Alicia occidit pripdictuni Johannem se defendendo, eo quod
voluit domum suam burgasse, &, ipsam occidisse, si posset. Ideo inde quieta. Et ca-
talla praedicti Johannis confiscantur." Placita coram eisdem jtislic'' ibidem. Rot. 12. in
dorso. Thomas le Chapeleyn nequiter ^' in felonid, f regit ostium domus Isabellce Lucas
de Bottewell. Hue and cry was raised, and he was pursued, and killed in fugiendo by
one William Javene. Javene broujrht the king's pardon pro morte ilia, " Ideo conceditur
ei firma pax, & quia praedictus Thomas le Chaieleyn occisus fuit in fugiendo, catalla
ejus confiscantur."
Ad. p. 508. /. 15. comes into the dwellin<T. house, but as the case is reported in Kel. 31.
he was indicted for brenking into the house. Vide infra Part II. p. 358,
Add. p. 556. I. ult. H. 7 E. 2. Rot. 88. This was the case of Thomas de Hedersete
and John de Upstone, who being convicted ed quod incendium Sf combustionem domorum
villiB de Lenne ex prescogitata malilia felonice perpetrdrunt, had judgment quod suspen-
dantiir.
Ad. p. 602. 3/. 28 E. 3. Rot. 32. " The abbot of St. Albans was impleaded coram
rege, pro evasione prisonum d gaola de Sancto Albans, cujus custodiam idem Abbas habet,
utde jure abbatliiae sus;" amongst whom wa.fi John de Heremyngford a clerk convict; but
upon the jury's finding, "quod idem Johannes de Hcremyngford tempore evasionis prfB-
dictsB, seu aliquo momcnto ante recaptioncm ejusdem, non fuit extra visum custodis dic-
tae gaote sub prsedicto Abbate, consideraluni est, quod praedictus Abbas eat inde qui-
etus."
M. 45 E. 3. Rot. 17. This was the case of William Bakere, who was taken cum bonis
Sf calallis furatis by the constables of Danbury, and set in the stocks, from whence he
escaped; upon which the said constables were brought coram rege ad respondendum, ^c.
and pleaded, " quod postquam latro ceppos fregit, ipsi earn recenler insecuti fuerunt,
visum super ipsum semper habentes," till they retook him, and committed him to the
gaol of the said town; " et quod prasdictus latro adhuc in eadem gaola existit, &c." The
king's attorney replied, and joined issue with them, as to their keeping constant view of
him till he was retaken. " Et juratores dicunt, quod prcedictus latro arrestatus & captus
fuit per eosdem constabularios, &. in ceppis positus, & quod iidem constabularii praedic-
tum latronem postea permiserunt evadere, absque hoc quod ipsi habuerunt visum super
prasfatum latronem in evadendo, prout ipsi superiCis allega,runt, Ideo consideratum est,
quod praedicti constabularii erga dominum regem de cenlum solidis pro evasione prae-
dicta onerentur."
Ad. p. 621. Mich. 7 R. 2. Rot. 3. This was the case of John, Vicar of Round Church
in Cambridge, who was indicted, that whereas one William Gore an approver, prisoner
in the castle of Cambridge, " laicus erat tempore captionis corporis sui, jam per assen-
sum, Sc licentiam gaolarii, & janitoris ibidem, irruditus [eruditus] est, &. informatus de
leturura [literatura] per eundem vicarium, &c." Upon this indictment the vicar surren-
dered himself coram rege, and was arraigned de felonid pradictd, and pleaded not guilty.
The court bailed him till his trial, which was before the judges of nisi prius in Cam-
bridge, where the jury found, " Quod praedictus Johannes vicarius in nullo est culpabilis
de feloniae, nee de aliquibus articulis sibi impositis, nee unquam se ea, occasione retraxit.
Ideo consideratum est, qu6d eat inde quietus."
Ad. p. 677. The reason why I say prest must now be understood in the active sense,
IS because, tho it be vulgarly used in a passive signification for being taken away by
compulsion, yet in legal understanding it cannot now be applied to any to make him a
listed soldier, and subject to penalties as such, unless he actively do somewhat, as taking
earnest, or the like, whereby he voluntarily consents to his being listed, and so amounts
to the same as taking prest.
Ad. p. 695. The statute of 1 Jac. cap. 12. against conjuration, witchcraft, Sfc. is
lately repealed by an act of this present parliament, viz. 9 Geo. 2. cap. 5.
711 HISTORIA PLACITORUM CORONiE.
FELONIES ENACTED SINCE THE LAST EDITION OF THIS BOOK, WHICH
WAS IN THE YEAR 1736.
VI. Wilfully destroying or damaging Westminster-Bridge.
By 9 Geo. 2. cap. 2[). Ifany person or persons shall wilfully and maliciously blow up, pull
down, or destroy the bridge or any part thereof, or attempt so to do, or unlawfully, with-
out authority from the Commisvsioners, remove or take any works thereto beionifing, or
direct or procure the same to be done, whereby the bridge or tlie works thereof may be
damaged, or the lives of the passengers endangered, such offender or offenders being
lawlully convicted, shall be adjudged guilty of lelony, and shall suffer death without
benefit of clergy.
[ 712 ] VII. Subjects inlisting, and persons procuring any subject
to inlist, to go abroad and serve any foreign prince, &c.
By 9 Geo. 2. cap. 30. sect. 1. and 29 Geo. 2. cap. 17. sect. 4. Ifany subject shall inlist
or enter himself, or shall engage to go beyond the seas, or embark with intent to inlist
and enter himself, tho no inlisting money be actually paid to him ; or ifany person shall
procure any subject to inlist or enter himself, or hire, or retain, any subject with intent
to cause him to inlist or enter himself, or retain, engage, or procure any subject (tho no
inlisting money be paid) to go beyond the seas, or embark with intent and in order to be
inlisted to serve any foreign prince, state, or potentate, as a soldier, without his majesty's
leave, he shall be guilty of felony without benefit of clergy; and offenses committed out
of the realm may be tried in any county in England, by 9 Geo. 2. cap. 30. sect. 2.
VIII. An act for indemnifying persons who have been guilty of
offenses against the laws made for securing the revenues of cus-
toms and excise, and for enforcing those laws for the future.
By 9 Geo. 2. cap. 35. sect, 7. Persons then liable to be transported for any of the
offenses touching the said revenues mentioned in this act, committing the like offenses
after claiming the benefit of this act, shall be adjudged guilty of felony, and suffer death
without benefit of clergy. See this statute at large, which contains many other pains
and penalties concerning the revenues, and is too voluminous to be all inserted here.
IX. An act of 10 Geo. 2. cap. 32. for continuing an act for the more
effectual punishing wicked and evil disposed persons going armed
in disguise, and doing injuries and violences to the persons and
properties of the king's subjects, and for the more speedy bringing
the off'enders to justice, &c.
By 10 Geo. 2. cap. 32. ahd 24 Geo. 2. cap. 5. the act of 9 Geo. 1. cap. 22. called the
Waltham Black Act, was continued for some time; and by 31 Geo. 2. cap. 32. it was
made perpetual. — And by this present act. sect. 6. ifany person or persons shall wilfully
and maliciously set on fire, or cause to be set on fire, any mine, pit, or del[)h of coal, or
cannel coal, every person so offending being thereof lawfully convicted, shall be adjudged
guilty of felony, and suffer death without benefit of clergy. And this sectibn the 6th
is made perpetual by 31 Geo. 2. cap. 42.'
By sect. 7. Persons convicted a second time of hunting and taking away deer out of
unincloscd forests or chases, are to be transported for 7 years; and if such person or
persons return from transportation within that lime, to be adjudged guilty of felony, and
suffer death without benefit of clergy.
By sect. 9. Persons armed coming into a forest, chace, or park, with an intent to
steal deer, and beating and wounding the keeper or keepers, their servants or assist-
ants, to suffer the like pains and penalties, as in sect. 7. and made perpetual by 31 Geo. 3.
cap. 42.
HISTORIA PLACITORUM CORONA. 713
X. An act of 11 Geo. 2. cap. 22. for punishing such persons as shall
do injuries and violences to the persons or properties of the king's
subjects with intent to hinder the exportation of corn.
By seel. 1. Persons usin^ violence to hinder the purchase or carriage of corn, to be
imprisoned and publickly whipt.
By sect, 2. Persons committing the like offenses a second time, or destroying grana-
ries, or corn therein, or in sliips, or vessels, shall be adjudged guilty of fe ony, and be
transported; and if they return from transportation, to suffer deatli without benefit of
clergy.
XI. An act of 11 Geo. 2. cap. 26. for enforcing the execution of an
act of the 9th of this king, intitled an act for laying a duty upon
the retailers of spirituous liquors, and for licensing the retailers
thereof.
By sect. 2., Rescuing offenders against this act, or assaulting informers, is made
felony, and transportation for seven years.
XII. An act of 13 Geo. 2. cap. 26. for the more effectual preventing
the exportation of wool fronn Greul-Britain ; and of wool and
. wool manufactured from Ireland to foreign parts.
By sect. 26. Persons opposing officers in the execution of their duty according to this
act, are to be transported for seven years, and if they return within that time to suffer
death as felons, without benefit of clergy.
XIII. Stealing sheep and other cattle.
By the 14 Geo. 2. cap. 6. Stealing sheep or other cattle is made felony, and the felon,
his aider or assistant, to suffer death without benefit of clergy. — But it becoming doubt-
ful to what sorts of cattle the said act was meant to extend, it is enacted by the 15
Geo. 2. cap. 34. that the said act was meant and intended, and shall be deemed and
taken to extend to any bull, cow, ox, steer, bullock, heifer, calf, and lamb, as well as
sheep, and to no other cattle whatsoever.
XIV. Forging, counterfeiting, or altering bank notes, &c. and ser-
vants of the bank breaking their trust to the company.
By 15 Geo. 2. cap. 13. sect. 11. If any person or persons shall forge, counterfeit, or
alter any bank note, bank bill of exchange, dividend Warrant, or any bond or obligation,
under the common seal of the said company, or any indorsement thereon, or shall offer
or dispose of, or put away any such forged, counterfeit, or altered note, bill, dividend
warrant, bond, or obligation, or the indorsement thereon, or demand the money therein
contained, or pretended to be due thereon, or any part thereof, of the said company, or
any their officers or servants, knowing such note, bill, dividend warrant, bond or obliga-
tion, or the indorsement thereon, to be forged, counterfeited, or altered, with intent to
defraud the said company, or their successors, or any other person or persons whatso-
ever; every person or persons so offending, and being thereof convicted in due form of
law, shall be deemed guilty of felony, and shall suffer death as a felon without
benefit of clergy. f 714 J
Sect. 12. If any officer or servant of the said company, being intrusted with
any note, bill, dividend warrant, bond, deed, or any security, money, or other effects be-
longing to the said company, or having any bill, dividend warrant, bond, deed, or any
security or effects of any other person or persons, lodged or deposed with the said com-
pany, or with him as an officer or servant of the said company, shall secrete, embezzle,
or run away with any such note, bill, dividend-warrant, bond, deed, security, money, or
effects, or any part of them ; every officer or servant so offending, and being thereof con-
victed in due form of law, shall be deemed guilty of felony, and shall suffer death as a
felon, without benefit of clergy.
714 HISTORIA PLACITORUM CORONiE.
XV. For preventing cloth or woollen goods remaining on the rark
or tenters, or any woollen yarn or wool left out to dry, from being
stolen or taken away in the night.
By 15 Geo. 2. cap. 27. If any cloth or woollen goods on the tenters, or woollen yfim,
or wool left out to dry, shall be stolen in the niglit, any justice, on complaint made .in
ten days by tlie owner, may issue his warrant to any peace officer in the day-time to
enter into, and search the houses, out-houses, yards, gardens, or other places belonging
to the houses of every person wliotn sueli owner shall, upon his oath, declare to such
justice he suspects to have stolen, taken away, or received the same ; and if the officer
shall find any such goods, which from the oath of such person he shall have reason to
sus[)ect to have been stolen, he shall apprehend the person in whose custody or posses-
sion the same shall be found, and carry him before a justice; and if he shall not give a
satisfactory account how lie came by the same, or in a convenient time, to be set by the
justice, produce tlie party of whom he had the same, or a credible witness to depose on
oath his properly therein, he shall be convicted of stealing such goods; and shall for the
first otVcnse forfeit to the owner treble value; and in default of payment thereof in the
time appointed by such justice, he shall issue his warrant to levy the same by distress
and sale; and in default of distress shall commit him to the common gaol where he shall
be apprehended, for three months, or till paid; for the second offence treble value, and
six months imprisonment; for the third offence such justice shall commit him till the
assizes; and if^lic shall be there convicted in like manner, he shall be guilty of felony,
and transported for seven years. But j)ersons aggrieved (except on the third conviction)
may ap[)eal to the next general quarter sessions, whose order tJierein shall be final. But
nevertheless, this shall not alter any former law in force, for stealing or receiving such
cloth or goods, except where the proOf is laid oh the ofiender as aforesaid.
XVI.' For preventing the coimferfeiting of the current coin of this
kingdom, and uttering and paying false or counterfeit coin.
By 15 Geo. 2. cap. 28. If any person shall wash, gild, or colour any lawful or counter-
feit silver coin, called a shilling or sixpence, or add to or alter the impression, or any part
thereof, on either side, with intent to make such shilling or sixpence resemble
I 715 I a guinea, or half a guinea; or shall any way alter or colour halfpennies or
farthings, with intent to make them resemble a shilling or sixpence, he, his
counscller^i, aiders and abettors, shall be guilty of high treason.
Sect. 2. If any person shall tender in payment any counterfeit coin, knowing it to be
so, he shall for the first ofl'ence suffer six months imprisonment, and find sureties for "his
good behaviour for six months longer: for the second offence, shall suffer two years im-
prisoinnent, and find sureties for two years more; and for the third offi;nce, shall be
guilty of felony without benefit of clergy.
Sect. 3. If any person shall tender in payment any counterfeit money (knowing it to
be so,) and shall either the same day, or within ten days after, knowingly tender other
false money in jjaynient, or at the'time of such tendering have more in his custody, he
shall, for the first offence, suffer a year's imprisonment, and find sureties for his good be-
haviour for two years more; and for the second offence, shall be guilty of felony without
benefit of clergy.
Sect. 5. 9. Persons guilty of the said crimes shall be tried and convicted in such man-
ner as is used against offenders for counterfeiting the coin; and the clerk of assize, or
clerk of the peace where the first conviction was had, shall certify the same by a tran-
script in few words, containing^ the tenor of such conviction (for which he shall have
2s. dd. and no more,) and such certificate being produced in court, shall be sufficient
proof of the former conviction. Prosecution to be in six months.
Aote. By this it should seem, that the justices of the peace in sessions have power to
try such offenders, otherwise this direction to the clerk of the peace to certify the con-
viction is incongruous; for he is not the proper person to certify what is done in another
court, where he is not necessarily supposed to be present; albeit no power is given to
the sessions by any express words in this statute to hear and determine such offenses.
XVII. For the more easy conviction of offenders found at large in
, Great Britain, after they have been ordered lor transportation.
By 16 Geo. 2. cap. 15. If any felon or other offender, ordered for transportation, or
having agreed to transport himself on certain conditions, either for life or any number
HISTORIA PLACITORUM CORONiE. 715
of years, shall be afterwards at large in any part of Great Britain, without some lawful
cause, before the expiration of the term, he shall be guilty of (ehmy witliout benefit of
clergy. And by sect. 2. of 16 Geo. 2. cap. 15. the manner of trying convicts returnino^
from transportation is to be according to 6 Geo. 1. cap. 23.
XVIII. For punishment of persons who shall aid or assist prisoners
to attempt to escape out of lawful custody.
By 16 Geo. 2. cap. 31. If any person shall assist any prisoner to at'empt liis escape
from any gaol, the no escape be actually made, if such prisoner was then attainted, or
convicted of treason or felony (except petty larceny,) or lawfully committed or detained
in any gaol for treason or felony (except petty larceny) expressed in the warrant of com-
mitment; he shall be guilty of felony, and be transported for seven years ; and if such
prisoner was then convicted of, or detained in gaol for petty larceny, or any
other crime not being treason or felony expressed in the warrant of commit- f 716 "|
rant, or was then in gaol for debt amounting to 100/. he shall be guilty of a
misdemeanour, and be liable to fine and imprisonment.
And if any person shall convey, or cause to be conveyed, any disguise, instrument or
arras, to any prisoner in gaol, or to any other person there for his use, witliout consent of
the keeper; such person, altho no escape or attempt be actually made, shall be deemed
to have delivered such disguise, instrument, or arms, with an intent to assist such pri-
soner to escape, or attempt to escape; and' if such prisoner was then attainted or convicted
of treason or felony (except petty larceny,) or lawfully detained in gaol for treason or
felony (except petty larceny) expressed in the warrant of commitment — he shall be
guilty of felony, and transported for seven years; — but if the prisoner was then convicted
or detained for petty larceny, or any other crime not being treason or felony, expressed
in the warrant of commitment, or for debt amounting to lOOl. he shall be guilty of a
misdemeanour, and liable to fine and imprisonment.
And if any person shall assist any prisoner to attempt to escape from any constable,
or other person who shall have the lawful charge of him in order to carry him to gaol,
by virtue of a warrant of commitment for treason or felony (except petty larceny;) or if
any person shall assist any felon to attempt to escape from on board any boat or vessel
carrying felons for transportation, or from the contractor for the transportation of such
felons, or his agents, he shall be guilty of felony, and be transported for seven years. —
All prosecutions on this act to be commenced within a year after the offence committed.
XIX. Holding correspondence with the sons of the pretender.
By 17 Geo. 2. cap. 39. Holding correspondence in any manner with any of the pre-
tender's sons, or with any person employed by them, or remitting any money for tlieir,
or any of their use, knowing the said money to be for such use or service, such person
so offending shall be guilty of high treason, and shall suffer and forfeit as in cases of
high treason. And any of the pretender's sons attempting to land in Great Britain or
Ireland, to stand and be adjudged to be attainted of high treason.
XX. Stealing of linen, fustian, and cotton goods and wares, in build-
ings, fields, grounds, and other places used for printing, whitening,
bleaching, or drying the same.
By 18 Geo. 2. cap. 27. Every person who shall by day or night feloniously steal any
linen, fustian, callico, or cotton cloth; or cloth worked, woven, or made of any cotton or
linen yarn mixed; or any thread, linen, or cotton yarn; linen or cotton tape, incle, fillet-
ing, laces, or any other linen, fustian or cotton goods, laid to be printed, wiiitened,
bowked, bleached, or dried, to the value oi ten shillings, or shall knowingly buy or re-
ceive any such wares stolen, or who shall assist, aid, or hire another to commit such
offence, shall be guilty of felony without benefit of clergy. — The court may order such
offenders to be transported for fourteen years. — And such offenders breaking gaol, or
returning from transportation, to suflfer death without benefit of clergy.
XXI. An act to indemnify persons who have been guilty r717'|
of the unlawful importing, landing, or running of pro-
hibited, uncustomed, or other goods and merchandize.
By 18 Geo. 2. cap. 28. Offenders guilty of the offences against the revenue mentioned
in this act, aftd liable to be transported for the same before this act was made, and taking
717 HISTORIA PLACITORUM CORONA.
the benefit of the indemnification therein, and afterwards repeating such offences, shall
be guilty of felony, and suffer death without benefit of clergy.
XXII. Riotous exportation of wool, and other goods prohibited to
be exported.
By 19 Geo. 2. cap. 34. which by the 11 Geo. 3. cnj>. 51. hath continuance to Sept.'^,
1778, &.C. If any persons armed, to the number of three or more, shall be assembled to
assist in tlic illegal exportation of wool, or other goods prohibited to be exported, or ia
carrying of wool, or other such goods, in order to exportation ; or in rescuing the sanie
after seizure; or in rescuing an offender- herein, or preventing his being apprehended; or
shall be aiding in any of the premises; or if any person shall have his face disguised
when passing with such goods; or shall forcibly hinder or assault any officer in seizing
the same, or dangerously wound any such, in attempting to go on board any vessel; or
shoot at, or wound him when on board in execution of his office, he shall be guilty of
felony without benefit of clergy. — There are several other felonies in this act agaii^t
smugglers, too long to be inserted here; so see the act, which is very long.
XXIII. To prevent the return of such rebels concerned in rebellion
in 1745, as were or should be pardoned on condition of transpor-
tation; and to hinder their going into the enemy's country.
By 20 Geo. 2. cap. 46. Rebels returning from transportation without licence, or volun-
tarily going into France or Spain to suffi;r death without benefit of clerjory ; and aiders
of such persons returning, to sutfer death without benefit of clergy. — And subjects hold-
ing correspondence with rebels going into France or Spain, or persons employed by thein,
to suffijr death without benefit of clergy.
XXIV. Quakers oaths.
By 27 Geo. 2. cap. 46. sect. 36. In all cases wherein by any act of parliament an oath
shall be allowed or required, the solemn affirmation of Quakers shall be allowed instead
of such oath, and that altho no express provision be made for that purpose in such act;
and if any person shall be lawfully convicted of wilful, false, and corrupt affirming, or
declaring any matter or thing, which, if sworn in the usual form, would have amounted
to wilful and.corrupt perjury, he shall suffer as in cases of perjury.
XXV. For preventing robberies and thefts upon any navigable
rivers, ports of entry or discharge, wharfs and keys adjacent.
By the 24 Geo. 2. cap. 45. All persons \vho shall feloniously steal any goods of the
value of forty shillings in any ship, boat, or vessel, on any navigable
r 718 1 river, or in any port of entry or discharge, or from any wharf or key, or
shall be present and aiding therein, sliall be excluded from the benefit of
clergy.
XXVI. For securing mines of black lead from theft and robbery.
By 25 Geo. 2. cap. 10, Every person who shall unlawfully break, or by force enter
into, any mine or wad-hole of wad, or black cawke, commonly called black lead ; or into
any pit, shalt, or vein thereof; or shall unlawfully take and carry away from thence any
wad, black cawke, or black lead; or shall aid, hire or command any person to commit
any the said offences, shall be guilty of felony, and the court or judge may order him to
be committed to prison, or the house of correction not exceeding one year, to be kept to
hard labour, and to be publicly whipt by the common hangman, or by the master of such
liouse of correction, at the times and places, and in such manner as the court shall think
proper; or he may be transported for a term not exceeding seven years; and if he shall
voluntiirily escape, or break prison, or return from transportation before the time, he shall
be guilty of felony without benefit of clergy: and if any person shall buy or receive any
such wad, knowing the same to be unlawfully taken and carried away as aforesaid, he
shall be guilty of felony, and be liable to all the penalties inflicted by the laws on persons
knowingly buying or receiving stolen goods.
XXVII. For better preventing the horrid crime of murder.
By 25 Geo. 2. cap. 37. sect. 9. If any person, shall, by force, set at libarty or rescue
HISTORIA PLACITORUM CORONA. 718
or attempt to set at liberty or rescue any person out of prison, committed for, or found
guilty of murder: or rescue, or attempt to rescue any such person goinfj to, or during
execution; he shall be guilty of felony without benefit of clergy. — And by sec. 10. If,
after execution, any person shall by lorce rescue, or attempt to rescue the body, he shall
be guilty of felony, and transported for seven years.
XXVIII. For enforcing the laws against persons who shall steal, or
detain ship-wrecked goods, S,'c.
By 26 Geo. 2. cop. 19. Persons convicted of plundering, stealing, taking away or
destroying any goods or merchandizes, Sfc. ship-wrecked, or of obstructing tlie escape of
any person from a wreck, or of putting out false lights, shall be deemed guilty of felony
without benefit of clergy. — sec. 2. Provided, where goods of small value shall be stolen
without any circumstances of cruelty, the offender may be indicted for petit lar-
ceny, and shall suffer such punishment as the laws, in cases of petit larceny, do enjoia
or require.
XXIX. For the better preventing clandestine marriages.
By 26 Geo. 2. cap. 3.3. sect. 8 Sf 9. If any person shall solemnize matrimony in any
other place than a church, or public chapel, (unless by special licence from the Arch-
bishop of Canlerhiiry) or without publication of bans, or licence in a church or chapel;
he shall (on prosecution in three years) be adjudged guilty of felony, and
transported for fourteen years; and the marriage shall be void. — But by sec. I" 719 1
18. not to extend to Scotland, nor to the marriages of Quakers, or Jews.
By Sec. 16. If any person shall knowingly and wilfully insert, or cause to be inserted
in the register book, any false entry, or any matter or thing relating to any marriage, or
falsely make, alter, forge, or counterfeit any such entry in the register or any marriage
licence, or cause the same to be done, or assent thereunto, or ufter as true any such
falsified register, or copy thereof, or any such forged licence, he shall be guilty of felony
without benefit of clergy.
XXX. Threatening letters.
By 27 Geo. 2. cap. 15. If any person shall knowingly send any letter, without any
name subscribed thereto, or signed with a fictitious naiue, demanding money or other
valuable thing; or threatening to kill or murder any of his Majesty's subjects, or to
burn their out-houses, barns, stacks of corn or grain, hay or straw; though no money,
or venison, or other valuable thing be demanded by such letter; ox shall rescue any
person in custody for such offence, he shall be guilty of felony without benefit of
clergy.
XXXIi For preventing the stealing, buying and receiving stolen
lead, iron, copper, brass, bell-metal and solder.
By 29 Geo. 2. cap. .30. Every person who shall buy or receive any of the said mate-
rials, knowing the same to be unlawfully come by, or shall privately buy or receive any
of tiie said materials (stolen) by suffering any door, window, or shutter, to be lefl
opened and unfastened, between sun-setting and .'<un-risifig, for that purpose; or shall
buy or receive the same, or any of them, at any time, in any clandestine manner, from
any person or persons whatsoever, shall, being convicted thereof by due course of law,
although the principal telon or felons has not nor have been convicted of stealing the
same, be transported for fourteen years.
XXXII. For punishment of persons who shall attain, or attempt to
attain, possession of goods or money by false or untrue pretences.
By 30 Geo. 2. cap. 24. All persons who knowingly and designedly, by false pretence
or pretences, shall obtain from any person money, goods, wares or merchandizes, with
intent to cheat or defraud any person of the same; or shall knowingly send or deliver
any letter or writing with, or without a name subscribed thereto, or signed with a fictitious
name, letter or letters, threatening to accuse any person of any crime punishable by law
with death, transportation, pillory, or any other infamous punishment, with intent to ex-
tort from him any money, or other goods, sliall be deemed offenders against law and the
public peace; and the court, before whom any such offender shall be tried, shall, on con-
719 HISTORIA PLACITORUM CORONiE.
victinn, orHer him to be fined and imprisoned, or to be put in the pillory, or publicly
whipped, or to be transported for seven years.
XXXIII. For preventing frauds and abuses attending payments of
seamen's wages, ^'C.
By 31 Geo. 2. cap. 10. Whosoever willingly and knowingly shall personate or falsely
assunio, or i>rocurc any other to personate or falsely assume, the name or
r 720 "1 character of any officer, seaman, or other person intitled, or sup|>osed to
be intitled to any wages, pay, or other allowances of money, or prize-
money, for the service done on board of any of his Majesty's ships or vessels; or wil-
lingly or knowingly shall personate or falsely assume the name or character of the
executor or administrator, wife, relation, or creditor of any such officer, or seaman, or
other person, in order to receive any wages, pay, or other allowances of money, or prize-
money as aforesaid, or shall forge or counterfeit, or procure to be forged, or counter-
feited (or utter or publish as true, knowing the same to be false, forged or counterfeited,
9 Geo. 3. cap. 30. see. 6.) any letter of attorney, bill, ticket, certificate, assignment, last
will, or any other power of authority, in order to receive any such wages, pay, or other
allowances of money, or prize-money as aforesaid; or shall willingly and knowingly take
a false oath, or procure any other person to take a false oath to obtain the probate of any
will, or letter of administration, in order to receive the payment of any vvuges, pay, or
other allowances of money, or prize-money due, or that were supposed to be due to any
Buch officer, seaman, or other persons as aforesaid, who has really served, or was sup-
posed to have served on board of any of his Majesty's-sliips or vessels; every such per-
son so offending shall be guilty of felony without benefit of clergy.
XXXIV. For preventing frauds and abuses in marking or stamping
gold or silver plate.
By 31 Geo. 2. cap. 32. sect. 15. If any person shall cast, forge or counterfeit, or cause
or procure to be cast, forged or counterfeited, the mark or stamp used for making plate
in pursuance of the act of 12 Geo. 2. cap. 26 <Sfr. by the goldsmith's company, &c. or
mark plate, «Slc with a forged or counterfeit mark or stamp, or shall transpose the
mark impressed from one piece of wrought plate to another; or shall sell or export
plate with a forged, counterfeit, or transposed mark, or shall wilfully and knowingly
have any such mark or stamp in liis possession ; he shall be guilty of felony without
benefit of clergy. But this is repealed, and made transportation for fourteen jears by
13 Geo. 3. cap. 59.
Felonies" exacted ix the time of Kixg George III.
I. To prevent the committing of thefts and frauds by persons navi-
gating bum-boats and other boats upon the river Thames.
By 2 Geo. 3. cap. 28. Persons convicted of knowingly buying, or receiving stolen
goods from vessels in the river Thames, or of privately buying or receiving, at any time,
anv such goods clandestine!}', or by suffering any door, window, or shutter at night, to
be left open or unfastened for that purpose, shall be transported for fourteen years; and
persons convicted of cutting or spoiling any cordage, cables, buoys, buoy-rope, headfast,
or other fasts, or ropes of vessels at anchor or moorings in the river; and per-
[ 721 I sons who shall be aiding or assisting therein, with an intent to steal the same,
shall be transported for seven years.
II. For preventing fraudsin relation to the postage of letters.
By 4 Geo. 3. cap. 24. sect. 8. If any person shall counterfeit the hand-writing of any
person whatsoever in the superscription of any letter, or packet, to be sent by the post,
in order to avoid payment of tiie duty of postage; every person so offending shall be deemed
guilty of felony, and shall be transported for seven years.
III. For establishing a manufactory of cambricks and lawns, ^-c.
By 4 Geo. 3. cap. 37. sect. 15. , If any person shall counterfeit the common seal of the
corporation, established by this act, or shall forge, counterfeit, or alter any deed, bill,
HISTORIA PLACITORUM CORON.E. 721
bond, or obligation under the common seal of the said corporation, or shall offer to dis-
pose of, or pay away any such forged, counterleited, or altered bill, bond, or obligation,
knowing the same to be such; or shall demand any money therein mentioned, or pre.
tended to be due thereon, or on any part thereof, of and from the said corporation, or any
members, officers, or servants thereof, knowing such bill, bond, or obligation to be forged,
counterfeited or altered, with intent to defraud the same corporation, or their successors,
or any other person or persons whomsoever, every person so offending, and being con-
victed thereof, shall be judged guilty of felony, and shall suffer as in cases of felony,
without benefit of clergy.
And by sect. 16. If any person shall, by day or night, break into any house, shop,
cellar, vault, or other place or building, or by force enter into any house, shop, cellar, or
vault, or other place or building with intent to steal, cut, or destroy any linen yarn be-
longing to any linen manufactory, or the looms, tools, or implements used therein ; or
shall williilly or maliciuusly cut in pieces or destroy any such goods, when exposed
either to bleach or dry, he shall be guilty of felony without benefit of clergy.
IV. For preservation offish in fish-ponds, and conies in warrens, &c.
By 5 Geo. 3. cap. 14. sect. 1. In case any person or persons shall enter into any park
or paddock fenced in and inclosed, or into any garden, orchard, or yard adjoining, or be-
longing to any dwelling-house, in or through which park or other premises any river or
stream shall run or be, or wherein shall be any river, stream, pond, pool, mo;it, stew, or
other water, and by any ways or means, or device, whatsoever, shall steal, take, kill, or
destroy any fish, bred, kept, or preserved, in any such river or stream, pond, pools moat,
stew, or other water aforesaid, without the consent of the owner or owners thereof; or
shall be aiding and assisting in stealing, taking, killing, or destroying any such fish as
aforesaid ; or shall receive or buy any such fish, knowing the same to be so stolen or
taken as aforesaid; and being thereof indicted within six calendar months next after such
qffcnse or offenses shall have been committed, before any judge, or justices
of gaol-delivery for the county wherein such park or paddock, garden, orcliard, V 722 1
or yard shall be, and shall on such indictment be by verdict, or his or their
own confession or confessions, convicted of any such offense or offenses as aforesaid; the
person or persons so convicted shall be transported for seven years.
And by sect. G. If any person or persons shall wilfully and wrongfully, in the night-
time, enter into any warren or ground, lawfully used or kept for the breeding or keeping
of conies, altho the same be not inclosed, and shall then and there wilfully and wrontr.
fully take or kill, in the night-time, any coney or conies, against the will of the owner
or occupier thereof, or shall be aiding and assisting therein, and shall be convicted of the
same before any of his majesty's justices of oyer and terminer or gaol-delivery, for the
county whereof such offensew offenses shall i)e committed, every such person and per-
sons so offending, and being thereof lawfully convicted in manner aforesaid -shall and
may be transported for seven years, or suffer such other punishment, by whipping, fine,
or imprisonment, as the court, before whom such person or persons shall be tried, shall
in their discretion award and direct.
By sect. 7. No person who shall be convicted of any offense against this act, shall be
liable to be convicted for any such offense under any former act or acts, law or laws,
now in force.
V. For preventing unlawful combinations of workmen employed in
the silk manufacture.
By 6 Geo. 3. cap. 28. sect. 15. If any person or persons shall, by day or by night,
break into any house or shop, or enter by force into any house or shop, with intent to
cut or destroy any velvet, wrought silk, or silk mixed with any other materials, or other
silk manufacture, in tlie loom, or any warp, or shute, tools, tackle, or utensils; or shall
wilfully and maliciously cut or destroy any velvet, wrought silk, or silk mixed with any
other materials, or other silk manufacture in the loom, or any warp or shute, tools, tackle,
or utensils, prepared or employed in, or for the making thereof; or shall wilfully and
maliciously break or dpstroy any tools, tackle, or utensils, use-d in or for the weaving or
making any such velvet, wrought silks, or silks mixed with any other materials, or other
silk goods, or silk manufactures, not having th^ qonsent of the owners so to do; every
such offender, being thereof lawfully convicted, shall be adjudged guilty of felony, and
shall suffer death without benefit of clergy.
722 HISTORIA PLACITORUM CORONA.
VI. For the encouraging the cuUivation, and for the better preser-
vation of trees, roots, plants, and shrubs.
By 6 Geo. 3. cap. 36. All and every person and persons who shall, in the night-time,
lop, top, cut down, break, throw down, bark, burn, or otherwise spoil or destroy, or carry
away any oak, beach, ash, elm, fir, chesnut, or asj) timber-tree, or other tree or trees
standing for timber, or likely to become timber, without the consent of the owner or
owners thereof first had and obained; or shall, in the night-time, pluck up,
I 723 I dig up, break, spoil, or destroy, or carry away, any root, shrub, or plaqt,
roots, shrubs, or plants of the '.•alue of five shillings, and which shall be grow-
ing, standing, or being in the garden, or under nursery-ground, or other inclosed ground,
of any person or persons whomsoever, shall be deemed and construed to be guilty of
felony; and every such person or persons shall be subject and liable to the like pains and
penalties as in cases of feloTiy; and the court by and before whom such person or persohs
shall be tried, shall, and Jiereby have authority to transport such person of persons for
the space of seven years: and all and every person and persons who shall be wilfully
aiding, abetting, or assisting in such cutting down, breaking, throwing down, barking,
burning, or otherwise spoiling or destroying, or carrying away any such oak, beach, ash,
elm, fir, cliesnui, or asp tiinbcr-tree, or other tree or trees standing for timber, or likely
to become timber, ns aforesaid; or in such plucking up. digging up, cutting, breaking,
spoihng, or destroying, or carrying away such root, shrub or plant, roots, shrubs or plants
as aforesaid, of the value aforesaid ; or who shall buy or receive such root, shrub or plant,
roots, shrubs or plants, of the value aforesaid, knowing (he same to be stolen, shall be
subject and liable to the same punishment, as if he, she, or they had stolen the same;
any law to the contrary in auy.wise .notwithstanding.
VII. For the better preservation of timber-trees, and of woods and
undcr-woods ; and lor the further preservation of roots, shrubs, and
plants.
By 6 Geo. 3. cap. 48. Every person who shall wilfully cut or break down, bark, burn,
pluck up, lop, top, crop, or otiierwise delace, damage, «!poil, or destroy, or carry away
any timber-tree or trees, or trees likely to become timber, or any pari thereof, or the
lops or tops thereot', without the consent of the owner (or in any of his majesty's forests
or chases, witiiout the consent of the surveyor, or his deputy, or persons intrusted wiih
the care thereof,) and shall be thereof convicted on the eath of one witness, belore one
justice, shall, for the first oflcnse, forfeit not exceeding 20/. together wi h the charges
previous to and attending such conviction, to be ascertained by such justice; and on
non-payment thereof', to be committed by such justice to the Qominon gaol, for any time
not exceeding twelve months, nor less than six, or until^ie penalty and charges shall
be paid: for the second ofiVnse to forfeit not exceeding 30Z. together with the charges as
aforesaid; and for non-payment, to be committed as aloresaid, for any time not exceeding
eighteen months, nor less than twelve, or until the penally and charges shall be paid ;
and if any person shall be guilty of a like cficncc, a third time, and shall thereof be con-
victed in like mar}ner,* he shall be deemed guilty of felony, and the court
r 724 ~\ before whom he shall be tried, shall have authority to transport him for seven
years. And all oak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime,
sycamore, and birch trees, [and also poplar, alder, larch, niapple, and hornbeam, by
13 Geo. 3. cap. 33.] shall be deemed timber trees.
And by sect. 3. Every person who shall pluck up, spoil or destroy, or take or carry
away any root, shrub or plant, roots, shrubs or plants, out of the fields, nurseries, gar-
dens, or garden-ground, or other cultivated lands, of any person, witiiout the consent of
t^ie owner, and shall be thereof convicted upon the oath of owe witness before one jus-
tice,^ shall, for the first offense, forfeit not exceeding 40s. together with the charges pre-
* Here scerhs to be a mistake. Being convicted in like manner, iniplies a sumn^ary
conviction, as before directed, before one justice; but it cannot be intended, that a justice
shall, in this manner, have power to transport a man. But the word court alterwards,
before which he shall be convicted (that is court of assize, or sessions, as it seemeth by
tlie following words of the act,) implies a legal trial by a jury; and therefore these words
[in like manner] ought to be omitted. .
t The words in the printed act arc [and shall be thereof convicted upon the oath of
one or more credible witness or witnesses, before any one or more justice or justices of
tlie peace]. It is probable by mistake of the printer of this act.
HISTORIA PLACITORUM CORON/E. 724
vious to, and attending such conviction, to be ascertained 'by such justice; and if not
paid immediately, the said justice shall commit him to the house of" correction for one
moiitli, to be kept to hard labour, and once whipped there: for the second offense, shall
forfeit not exceeding 51. together with the charges as aforesaid; and if not paid imme-
diately, then to be committed to the house of correction for three months, and to be kept
to hard labour, and whipped there once in every of the said months; and if any person
shall a third time commit the like offense, and shall be thereof convicted, he shall be
deemed guilty of felony, and the court before whom he shall be tried, shall have authority
to transport him for seven years.
VIII. Stealing bills or other securities for money out of letters.
By 7 Geo, 3. cap. 50. sect. 1. If any person employed in the business of the post-
ofBce, shall secrete, imbezzle, or destroy any letter or packet, containing any bank note,
bank post bill, bill of exchange, exchequer bill, South-Sea or East India bond, dividend
warrant of the bank, or other company, navy, or victualling, or transport bill, ordnance
debenture, seaman's ticket, state lottery ticket, bank receipt for payment on any loan,
note or assignment of stock in the funds, letter of attorney for receiving annuities or
dividends, or for selling stock in the funds, or belonging to any company, American pro-
vincial bill of credit, goldsmith's or banker's note for payment of money, or other bond
or warrant, draught, bill, or promissory note for payment of money, or shall steal and
take the same out of any letter or packet, he shall be guilty of felony, and suffer death
without benefit of clergy. [And see for the like the act of 5 Geo. 3. cap. 25. sect. 17]
By sect. 2. If any person shall rob any mail of any letter, packet or bag, or shall
steal and take any letter or packet from out of any mail or bag or out of any post-ofRce,
or house, or place, for the receipt of delivery of letters, altho tlic same shall not appca,r
to be a taking from the person, or on the highway, or in a dwelling-house, or out-house
belonging to a dwelling-house; and altho it shall not appear that any person
was put in fear, he shall nevertheless be guilty of felony, and shall suffer death I" 725 J
without benefit of clergy.
By sect. 3. If any person employed in any business of the post-office, who shall take
any letter or packet to be forwarded by the post, and receive any money therewith for
the postage, shall burn or destroy any such letter or pikckel; or shall advance the rate of
postage upon any letter or packet, and not duly account for the money by him received
for such advanced postage, he shall be deemed guilty of felony.
IX. For the more speedy and effectual transportation of offenders.
By 8 Geo. 3. cap. 15. Where his majesty's mercy shall be extended to any offender
upon condition of transportation, and the same be signified to the judge, by one of the
principal secretaries of state, such judge may make order for the immediate transporta-
tion of such offender; who shall thereupon be transferred and made over to the con-
tractor, ^c. and if such offender be afterwards seen at large in Great Britain, without
lawful cause, before the expiration of the term for which he was transpor^d, he shall
suffer death without benefit of clergy.
X. For punishment of persons destroying mills, mines, ^'c.
By 9 Geo. 3. cap. 29. sect. 1. If any person or persons riotously and tumultuously
assembled, to the disturbance of the public peace, shall unlawfully and with force de-
molish or pull down, or begin to demolish or pull down any wind saw-mill, or other
wind-mill, or any water-mill, or other mill, or any of the works thereto belonging, every
such person shall be guilty of felony without benefit of clergy.
And by sect. 2. If any person shall wilfully or maliciously burn, or Set fire to any
such mill; he shall in like manner be guilty of felony without benefit of clergy.
And by sect. 3. If any person sTiall wilfully or maliciously set fire to, burn, demolish,
pull down, or otherwise destroy or damage any fire engine, or other engine erected for
draining water from collieries, or coal mines, or for drawing coals out of the same; or
for draining water from any mine of lead, tin, copper, or other mineral ; or any
bridge, waggon-way or trunk, erected for conveying coals from any colliery or coal-
mine, or staith for depositing the same; or any bridge or waggon-way erected for
conveying lead, tin, copper,, or other mineral from any such mine, or shall cause or
procure the same to be done, he shall be guilty of felony, and transported for seven
years.
VOL. I. — 59
725 HISTORIA PLACITORUM CORONA.
XI. Forgery in relation to seaman's wages.
By 9 Geo. 3. cap. 30. sect. 6. If any person shall utter or publisli as true, any false,
forged or counterfeited letter of attorney, bill, ticket, certificate, assignment, last will,
or any other power or authority whatsoever, in order to receive any wages, pay, or other
allowance^ of money, for prize-money, due, or supposed to be due to any officer or sea-
man, or otlicr person, who has really served, or was supposed to have served, or who
shall hereafter serve, or be supposed to have served, on board of any ship or vessel of his
Majesty, his heirs or successors, with intent to defraud any person, knowing the same
to be false, forged or counterlcitcd ; then every sucli perscn, being thereof
r 726 1 lawfully convicted, shall be deemed guilty of felony, and shall suti'er death
without bene6t of clergy.
XII. For making the receiving of stolen jewels, and gold and silver
plate, in the case of burglary and highway robbery, more penal.
By 10 Gto. 3. cap. 48. Every person who shall buy or receive any stolen jewel or
jewels, or any stolen gold or silver plate, watch or watches, knowing the same to have
been stolen, shall, in all cases where such jewel or jewels, or gold or silver plate shall
have been feloniously stolen, accompanied with a burglary actually committed in the
stealing the same, or shall have been feloniously taken by a robbery on the highway,
shall be tri iblc as well before conviction of the principal felon in such felony and bur-
glary or robbery, wliether, he sb.all be in or out of custody, as alter his conviction. And
if any person so buying or receiving such jewel or jewels, or gold or silver plate, shall
be convicted thereof, he shall be guilty of felony, and transported for tourteen years.
XIII. For preventing the counterfeiting the copper coin of this realm.
By 11 Geo. 3. cap. 40. sect. 1. Jf any person or persons shall make, coin, or counter-
feit, any of the copper monies of this realm, commonly called an halfpenny, or af'irthing^
such person or persons offending therein, and his, her, or their counsellors, aiddrs, or
abetters and procurers, shall be adjudged guilty of felony [but within clergy.]
By sect. 2, If any person or persons shall buy, sell, take, receive pay, or put off any
counterfeit copper money, not melted down, or cut in pieces, at, or for a less rate or value
than the same, by its denomination, doth or shall import, or was counterfeited for, 'every
such person and persons shall be adjudged guilty of felony [but within clergy.]
XIV. For proceeding against persons standing mute on their arraign-
ment for felony or piracy.
By 12 Geo, 3. cop. 20, If any person being arraigned on any indictment or appeal
for tblony, or on any indictment for piracy, shall, upon such arraignment stand mule, or
will not answer directly to the felony or piracy, such person so standing mute, as afore-
said, shall be convicted of the felony or piracy charged ip such indictment or appeal;
and the co^t, before whom he shall be arraigned, shall thereupon award judgment and
execution against such person, in the same manner as if such person had been convicted
by verdict, or confession of the felony, or piracy charged in such indictment or appeal;
and sue!) judgment shall have all the same consequences in every respect, as if such per-
son had been convicted by verdict or confession of such felony or piracy, and judgment
had been thereupon awarded.
XV. For preserving his JNIajesty's dock-yards, magazines, ships,
ammunition, and stores.
By 12 Geo. 3. cap. 24. If any person shall, either within this realm, or any of the
islands, countries, forts or places thereunto belonging, wilfully and maliciously set on
fire, or burn, or otherwise destroy, any of his Majesty's ships or vessels of war, whether
the same be on tloat, or building in any of his Majesty's dock-yards, or build-
I 727 I i'lgi or repairing by contract in any private yard ; or any of his Majesty's
arsenals, magazines, dock-yards, rope-yards, victualling-offices, or any of the
buildings erected therein, or belonging thereto; or any timber or materials there placed,
for building, repairing, or fitting out of ships or vessels ; or any of his Majesty's military,
naval, or victualling stores, or other ammunition of war; or any place where any such
military, naval, or victualling stores, or other ammunition of war shall be kept; he, and
also his aiders and abetters, shall be guilty of felony, without benefit of clergy.
HISTORIA PLACITORUM CORON^E. 707
XVI. For the preventing of frauds in the stamp duties upon vellum,
parchment, paper and cards.
By 12 Geo. 3. cap. 48. If any person shall write or engross, or cause to be written or
engrossed, cither the whole, or any part of any writ, mandate, bond, affidavit, or other
writing, matter, or thing whatsoever, in respect wlicreof any duty is, or shall be payable
bv any act or acts made, or to be made in that belialf, on the whole, or any part of any
piece of vellum, parchment or paper, whereon there shall have been before written any
other writ, bond, mandate, atfidavit, or other matter or thing, in respect whereof any
duty was or shall be payable, as aforesaid, before such vellum, parchment, or paper, shall
have been again marked or stamped according to the said acts; or shall fraudulently erase
or scrape out, or cause to be erased or scraped out, the name or names of any person or
persons, or any sum, date, or otlicr thing, written in such writ, mandate, affidavit, bond,
or other writing, matter or thing, as aforesaid; or fraudulently cut, tear, or get otf, any
mark or stamp, in respect whereof or whereby, any duties are or shall be payable, or,
denoted to be paid or payable as aforesaid, frotn any piece of vellum, parchment, paper,
playing cards, outside paper of any parcel or pack of playing cards, or any part thereof^
with intent to use such stamp or mark for any other writing, matter or thing, in respect
whereof Any duty is, or shall be payable, or denoted to be paid or payable, as aforesaid,
then, and so often, and in every such case, every person so offending in any of the par-
ticulars before mentioned, and every person knowingly and wilfully aiding, abetting or
assisting any person or persons, to commit any such offense or otfcnses, as aforesaid,
. ehall be deemed guilty of felony, and shall be transported for a term not exceeding seven
years; and if such offender shall voluntarily escape, or break prison, or returri from
transportation within Uie limited tinic, he slmll sufibr death w^itbout benefit of clergy.
XVII. For the more efrcctnal execution of criminal laws in the two
parts of the united kingdom.
By 13 Geo. 3. cap. 31. sec. 4. If any person having feloniously taken money, cattle,
goods, or other elfects, in cither part of the united kingdom, and shall afterwards have
the same, or any part thereof, in his possession in the other part of the united kingdom;
it shall be lawful to indict, try and punish him for thelt or larciny, in that part of the
united kingdom where he shall so have such money, cattle, goods or other efiecls in his
possession, as if the same had been stolen there.
And by sect. 5. If any person, in either part of the united kingdom, shall
knowingly receive or have any money, cattle, goods, or other eflccts, stolen, f 728 1
or otherwise feloniously taken in the other part of the united kingdom, he
ehall be liable to be indicted, tried, and punished for the same, in that part of the united
kingdom where he shall so receive and have the same, as if they had been originally
stolen there.
XVIII. For the preventing the forging or counterfeiting any stamp
or seal used for marking calicoes, linens and stuffs to be printed,
painted, stained or dyed.
By 13 Geo. 3. cap. 56. If any person shall counterfeit or forge any stamp or seal
already provided by the commissioners in the said act mentioned, or which shall here-
after be provided, renewed, or altered; or shall counterfeit, or resemble the impression of
the same, upon any of the said commodities chargeable with duties, thereby to defraud
his 3Iajesty thereof, such person shall be guilty of felony without benefit of clergy.
XIX. For preventing the forging of the notes or bills of the Bank of
England, Ǥ'C.
By 13 Geo. 3. cap. 79. sec. 1. If any person or persons (other than the officers, work-
men, servants, or agents for the time being of the governor, &-c. of the bank, to be autho-
rised for that purpose by them, and for their use) shall make or use, ox cause or procure
to be made or used, or knowingly aid or assist in the making or using, or (without being
authorised as aforesaid) shall knowingly have in his, her, or their custody or possession
(without lawful excuse, the proof whereof shall lie upon the person accused) any frame,
mould, or instrument for the making of paper, with the words Bank of England, visible
in the substance of such paper; or shall make, or cause or procure to be made, or know-
ingly aid or assist in the making any paper, in the substance of which the said words.
Bank of England, shall be visible; or if any person (except as before excepted) shall by
728 HISTORIA PLACITORUM CORONA.
any art, mystery, or contrivance, cause or procure the said words, Bank of England, to
appear visible in the substance of any paper wiiatsoever; or knowingly aid or assist in
causing the said words, linnk of England, to a|)pcar in the substance of any paper what-
soever; every person so offendinor in any of the cases aforesaid, sliull, for such oflFcnse,
be deemed a felon, and shall sutler death without benefit of clergy.*
XX. To prevent the stealing of deer.
By 16 Geo. 3. op. 30. sect. 1. The penalty on persons who shall hunt, kill, wound or
shoot at, &c. any tallow-deer in any forest, park, «Scc. without being duly authorised, is,
for the second otfensc, felony and transportation for seven years.
And by sect. !). The penally on persons carrying fire arms into any forest, park, Sec
with intent to destroy deer, is also felony, and transportation for seven years.
XXI. To antliorize, for a limited time, the punisimient by hard la-
bour of otfenders, who, for certain crimes, are, or shall become
hable to be transported.
By 16 Geo. 3. cap. 43. sect. 1. Any male person convicted in England of any crime
punishable by transportation, may, instead thereof, be kept to hard labour in
r 729 "1 cleansing the river lliames, «fcc. for any term not less than three, nor more
than ten years.
And by sect. 15. If any person so ordered to hard labour, shall at any lime during the
term, for which he shall be ordered to hard labour, break prison, or escape; for the first
escape, he shall be punisiied by doubling the term of the service and hard labour ; and
on conviction for a second escape, he shall be adjudged a felon, and sutler death without
benefit of clergy .t
STATUTES RELATING TO FELONY ENACTED SINCE THE LAST EDITION
OF THIS WORK, WHICH WAS IN THE YEAR 177S.
XXII. For granting to his Majesty certain duties on licences, to be
taken out by all persons acting as auctioneers, and certain rates
and duties on all lands, houses, goods, and other things, sold by
auction ;{a) and upon indentures, leases, bonds, deeds, and other
instruments.
By 17 Geo. 3. ch. 50. ^ 25. If any person shall counterfeit or forge, or procure to be
counterfeited or forged, any seal, stamp, or mark, to resemble any seal, stamp, or mark,
directed, or allowed to be used by this or any other act of parliament, for the purpose of
denoting the duties by this or any other act of parliament granted, or shall counterfeit
or resemble the impression of the same witli an intent to defraud his Majesty, his heirs
and successors, of any of the said duties; or shall privately or fraudulently use any seal,
stamp, or mark, directed or allowed to be used by this or any other act of parliament,
relating to the stamp-duties, with intent to defraud his Majestij, his heirs and successors
of any of the said duties; every person so offending, and being thereof lawfully convicted,
shall be adjudged a felon, and shall sutler death as in cases of felony, without benefit of
cJergy.
XXIII. For preventing the forging of acceptances of bills of ex-
change, 4'C. with intent to defraud corporations. Tide stat. 7.
Geo. 2. ch. 22.
By IS Geo. 3. ch. 18. If any person shall falsely make, alter, forge, or counterfeit, or
cause or procure, ^-c. or willingly act, ^-c. any acceptance of any bill of exchange, or the
* By 13 Geo. 3.,ch. 84. § 42, the malicious destruction of turnpike-gates, houses, or
engines, Sfc. is a felonious and transportable oftence; (and so as to rescuers, &c.) Vide
indictment hereon, and said § o^ stat. at large. Cr. Cir. Com. 7th edit. 740-1.
t By 16 Geo. 3. ch. 34. § 15. If any person shall counterfeit, &c. or utter, sell, &c.
knowing, &.c. any seal, stamp, or mark, used for indentures, leases, bonds, or other
deeds, cards, dice, or newspapers, he shall be adjudged a felon, and sutfer death without
benefit of clergy. Vide also abstract of 29 Geo. 3. ch. 50. § 13. being No. LX.1. post.
(a) Partly repealed as to aucliuns, by 13 Geo. 3. ch. 56. § 1.
HISTORIA PLACITORUM CORONA. 729
namber, or principal sum of any accountable receiptt for any note, bill, or other security
for payment of money, or any warrant or order for payment of money, or delivery of
goods, with intention to defraud any corporation whatsoever; or shall utter, <Sfc. with liiic
intention, he shall be deemed guilty of felony, and shall sufler death as a felon without
benefit of clergy.
XXIV. For the payment of costs to parties on complaints determined
before Justices of the peace, out of sessions; for the payment of the
charges of Constables in certain cases ; and for the more eflectual
payment of charges to witnesses and prosecutors of any larceny,
or other felony.
By 18 Geo. 3. ch. 19. § 7. On trials for grand or petit larceny, or other felony, the
court may order the treasurer of the county, 6jc. to pay the prosecutor his reasonable
expences, and also an allowance for his troui)le and loss of time, if he shall appear to the
court to be in poor circumstances. And also by the same statute, § H. the court may
order the payment of the reasonable expences of persons appearing on their recog-
nizances, or subpoenas, to give evidence, whether any bill of indictment be preferred or
not to the grand jury, and also reasonable allowances for their trouble and loss of time,
if they shall appear to the court to be in poor circumstances. (6)
Vide Stat. 25 Geo. 2. ch. 36. § 11. and 27 Geo. 2. ch. 3. § 3. cited in 6 T. R. 238. Eas-
ter Term, 35 Geo. 3. K. B.
XXV. For granting to his Majesty several additional duties on
stamped vellum, parchment, and paper: and for belter securing the
stamp duties upon indentures, leases, deeds, and other instruments.
By 19 Geo. 3. ch. 66. § 8. If any person shall counterfeit or forge, or procure to be
counterfeited or forged, any seal, stamp, or mark, directed or allowed to be used by this
or any other act of parliament, for the purpose of denoting the duties by this or any
other act of parliament granted, or shall counterfeit or resemble the impression of the
same, with an intent, Sfc. or shall privately or fraudulently use, <Sfc. he shall be adjudged
a felon, and shall suffer death as in cases of felony, without benefit of clergy.
XXVI. To explain and amend the laws relating to the Transpor-
tation, imprisonment, and other punishment of certain offenders.
Vide No. XL. post.
By 19 Geo. 3. ch. 74. § 3. When any person is convicted of felony for which he shall
be liable to be burnt in the hand,{c) the court may, instead thereof, impose on him a
moderate fine, or (except in the case of manslaughter) order him to be either publickly
or privately whipped. But by § 4. this act shall not abridge the power vested in the
court of imprisoning offenders,
XXVII. For granting to his Majesty several additional duties on
advertisements; and certain duties on receipts for legacies, or for
any share of a personal estate divided by force of the statute of
distributions, or the custom of any province or place.*
By 20 Geo. 3. ch. 28. § 6. If any person shall counterfeit or forge, or procure, S^c.
any seal, stamp, or mark, directed or allowed to be used by this act, or shall
counterfeit or resemble the impression of the same, with intent, <^r. or shall f 730 ~\
privately or fraudulently use, <^c. he shall, upon conviction, sufl^er death as in
cases of felony, without benefit of clergy.
XXVIII. For granting to his Majesty an additional duty upon al-
manacks printed on one side of any one sheet or piece of paper, S,'C.
By 21 Geo. 3. ch. 56. § 9. If any person shall counterfeit, or forge, or procure to be
{b) These expences extend to inferior districts having jurisdiction to try felons, and
raising their own rates similar to the county rates. Rex v. Myers, 6 T. R. 237.
(c) Vide Stat. 4. Geo. 1. ch. 11; 6 Geo. l.'ch. 23.
* Repealed as to receipts for legacies, and new duties granted, by 36 Geo. 3. ch. 52. *
abstracted post.
730 HISTORIA PLACITORUISI CORON.F..
counterfeited or forged, any stamp or mark, to resemble any stamp or mark, directed to
be used by this or any other act of parliament; or shall counterfeit or resemble the im-
pression of the same; or shall utter, Sfc. or shall privately or fraudulently use, t^c. with
intent to defraud, Sfc. he shall, upon conviction, sutler death as in cases of felony, with-
out benefit of clergy.
XXIX. To explain and* amend an act, made in the fourth year of
the reign of his late JMajesty King Geor<:e the Second, intitnled,
I An Act for the more effectnal punishing stealers of lead, and iron
bars, fixed to houses,{d) or any fences belonging thereunto.
By 21 Geo. 3. ch. G8. All and every person and persons who shall steal, rip, cut,
break, or remove with intent to steal, any copper, brass, bdl-melal, vteiisil, or Jixtiire,
being fixed to any dwelling-house, out-house, coach-house, stable, or other building, used
or occupied with such dwelling-house, or thereunto belonging, or to any other building
whatsoever, or fixed in any garden, orchard, court yard, fenre, or outlet, belonging to
any dwelling-house, or other building, or any iron rails, or fencing set or fixed in any
square, court, or other place (such |)erson having no title or claim to title thereto,) shall
be deemed and construed to be guilty of felony; and the court may order him to be
transported for seven years, or kept to hard labour in |)rison for any time not exceeding
three years, nor less than one, subject also to the punishment of public whipping (if the
court shall think fit,) not exceeding three times: And all persons assisting therein, or
who siiall buy or receive, i^r . knowing, Jffc, are subject to the same punishments, although
the principal felon or felons has not, or have not, been convicted of stealing the same.
XXX. To explain and amend an act, made in the twenty-ninth year
of the reign of his late Mnjest}/ King George the Second, intituled,
An Act for more elfcctually discouraging and preventing the steal-
ing, and the buying and receiving of stolen lead, iron, copper, brass,
bell-metal, and solder, and for more etfectually bringing the otfeu-
ders to justice.
■ By 21 Geo. 2. ch. 69. Every person who shall buy or receive any pewter-pot, or o(her.
vessel, or any pewter in any form or shape whatever, knowing the same to be stolen, if
unlawfully come by; or shall privately, buy or receive any stolen pewter, by suticring
any door, window, or shutter, to be left open or unfastened, between sun-setting and sun-
xising, for that purpose; or shall buy or receive the same at any time, in any clandestine
mariner, from any person or persons whatsoever, shall, being thereof convicted by due
course of law, although the principal felon or felons has not, or have not, been convicted
of stealing the same, be transported for any time not exceeding seven years, or be kept
and detained in prison and therein kept to hard labour for any time not exceeding three
years, nor less than one year; and within tliat time (if the court shall think fitting) such
offender or offenders shall be once, or oftener, but not more than three times, publicly
whipped.
XXXI. For punishing persons wilfully and maliciously destroying
any ivoollen, silk, lijien, or cotton goods, or any iynplements pre-
pared for or used in the manufacture thereof; and for repealing so
much of two acts, made in the twelfth year of King George the
First, and the sixth year of his present Majesty, as relates to the
_. punishment of persons destroying any woollen or silk manu-
L ' ^■*- J factures, or any implements prepared for, or used tl)erein.(e)
By 22 Geo. 3. ch. 40. § L If any person or persons shall, by day or by night, break
into any house or shop, or enter by force into any house or shop, with intent to cut or
{d) See the indictments against Principal and Aider. Cr. Cir. Com. 7th edit. 459.
Against the Receiver. Ibid. 460. Vide Hickman's case and references, noted in the
same book, touching the manner of laying an indictment for stealing lead from a church.
Page 461.
(e) Vide 28 Geo. 3. ch. 55. and 29 Geo. 3. ch. 46. abstracted hereafter, being No. LVIII.
and LX.
HISTORIA PLACITORUM CORONA. 731
destroy any serge or other woollen goods in the loom, or any tools employed in making
thereof; or shall wilfully and maliciously cut or destroy any such serges or woollen
goods in the loom, or on the rack ; or shall burn, cut, or destroy any rack on which any
such serges or other woollen goods are handed in order to dry; or shall wilfully and
maliciously hrcak or destroy any tools used in the making any such serges or other
woollen goods, not having the consent of tlic owner so to do; every such offender, being
thereof lawfully convicted, shall be guilty of felony, without benefit of clergy.
^ 2. To the same effect as to silk goods, or tools used in the manufacturing thereof.
§ 3. The like as to linen and cotton manufactures, Sfc.
§ 4. Repeals part of 12 Geo. 1. ch. 34; and,
§ 5. Repeals part of 6 Geo. 3.ch. 28.(/)
XXXII, For the more easy discovery and effectual punishment of
buyers and receivers o^ stolen goods.
By 22 Geo. 3. ch. 58. § 1. Buyers or receivers of stolen goods (except lead, iron, cop.
per, brass, bell-metal, and solder,) although the offence of the principal amounts to petit
laiceny(^'r) only, knowing, Sfc. may be prosecuted for a misdemeanor, and punished by
fine, imprisonment, or whipping, although the principal felon or felons be not before con-
victed of the said felony, and whether he, she, or they, is or are amenable to justice or
not. But where the felony actually committed shall amount to grand larceinj, and the
party actually committing thereof shall not be before convicted, such offender or offenders
shall be exempted from being punished as accessary or accessaries, if such principal
felon or felons shall be afterwards convicted.
By § 2. justices may grant search-warrants and commit, ^-c.
§ 3. Constables, iSfC. may apprehend persons suspected, Sfc.
§ 4. Persons offering stolen goods to be pawned or sold rtiay (upon reasonable cause)
betaken before a justice, 6fc.
§ 5. Persons under fifteen years of age, charged with felony, within benefit of clergy,
pardoned upon discovering two or more receivers, i^fc.
§ 6. Not to repeal any former law, Sfc. nor shall an offender convicted under this act
be punished for the same offence by any such former law.
XXXIII, For repealing an act made in liie twenty-second year of
his present JMajesty, intituled, ./^;2 act for charging a stamp duty
upon inland bills of exchange, pro?nis.wry notes, or other notes
payable otherwise than upon demand; and for granting new
stamp duties on bills of exchange, promissory and other notes;
and also stamp duties upon receipts.*
By 23 Geo. 3. ch. 49. § 20. If any person shall counterfeit or forge^or procure to be
counterfeited or forged any stamp or mark directed or allowed to be used by this act, or
shall fraudulently use, S^c. with intent, i^c. or shall utter, vend, sell, or expose to sale,
any vellum, parchment, or paper, liable to the said duties, with any counterfeit mark or
impression thereupon, knowing, i^c. he shall, upon conviction, suffer death as in cases
of felony, without benefit of clergy.
XXXIV, For granting to \\\s Majesty sevev^X additional and new
duties upon stamped vellum, parchment, and paper; and also for
repealing certain exemptions from the stamp duties.!
By 23 Geo. 3. ch, 58. § 11. If any person shall counterfeit or forge, or procure to be
counterfeited or forged, any seal, stamp, or mark, directed or alloi\'ed to be Used by this,
or any other act, or shall utter, 4"C. or privately or fraudulently use any seal, i^c. he
shall, upon conviction, suffer death as in cases of felony without benefit of clergy.
(/) For an indictment on the stat. in question, viz. 22 Geo. 3. ch. 40. vide Cr. Gir.
Com. 7th Edit. 692.
(or) At common law there can be no accessaries in petit larceny. Vide ante, p. 616.
* Duties under this act to cease, and new ones granted, by 31 Geo. 3. ch.'2o. abstract-
ed post.
t Partly repealed by 36 Geo. 3. ch. 52. abstracted post.
732 HISTORIA PLACITORUM CORONA.
XXXV. For the more effectual preventing the illegal importation of
foreign spirits, and for putting a stop to the private distillation of
£7niish-mvide spirituous liquors, <§•«•.
By 23 Geo. 3. ch. 70. § 9. Persons making- frames, moulds, plates, Sfc. for excise-per-
mits, or paper for tliat purpose, ^c. and their aiders, unless appointed by the cominis-
sioners of excise, Sfc, shall, upon jconviction, suffer death as in cases of felony, williout
benefit of clergy.
XXXVI. To extend the provisions of an act (intituled an act to
amend and make more eflectual the laws relating to rognes, vai^a-
honds, and other idle and disorderly persons, and to houses of
correction,) to certain cases not therein mentioned.
By 23 Geo. 3. ch. 88. If any person or persons be apprehended having any implement
for liouse-breaking, or any offensive weapon, with a filonioiis intent, S;c. or shall be
found in or upon any dwelling-house, warehouse, coach-house, stable, or out-house, or iu
any inclosed yard or garden, or area belonging to any house, with an intent to steal any
goods or chattels; every such person shall be deemed a rogue and vagabond, within the
intent and meaning of slat. 17 Geo. 2. ch. 5. (A)
XXXVII. For granting to his Majesty certain additional rates of
postage for conveyance of letters and packets, by the post, within
the kingdom of Great Britain; and for preventing frauds, 6,-0.
By 24 Geo. 3. Sess. 2. ch. 37. § 9. If any person shall forge or counterfeit the hand-
writing of any person whatsoever, in the subscription of any letter or packet to be se'ht
by the post in order to avoid the postage, or the date, ^-c. or shall send by the post any
forged or counterfeited subscription on any letter or packet, knowing, ^c he shall be
deemed guilty of felony, and transported for seven years.
XXXVIII. For the more eflectual prevention of smuggling in this
kingdom.
Vide No. LVI. and LXXI. post.
By 24 Geo. 3. sess. 2. ch. 47. § 11. If any person shall maliciously shoot at any ship,
vessel, or boat, belonging to his Majesty's navy, or in the service of the customs or excise,
within four leagues of the limits of any port, Sfc. or the coast thereof, ^-c. or at any
officer, «Sfc. when in the execution of their duty, he shall, being thereof lawfully convicted,
be adjudged guilty of felony, and shall suffer death as a felon, without benefit of clergy,
and so as to the aiders and abetters therein.
XXXIX. For granting to his Majesty certain duties on licenses for
vending hats by retail, 4'C.*
By 24 Geo. 3. sess. 2. ch. 51. § 15. If any person shall counterfeit, S^c. or privately
or fraudulently use, S(c. any seal, stamp, or mark, directed or allowed by this act, he
shall be adjudged a felon, and suffer death, without benefit of clergy.
XL. For the transportation of felons and other offenders, S,'C.
By 24 Geo. 3, sess. 2. ch. 56. ^ 1. His Majesty in council may direct to what place
the fielons shall be conveyed, ^-c. By § 6. they may be sent to the River Thames, S^c.
There are many regulations respecting this subject in the "statute : and there are also
other subsequent statutes, such as 27 Geo. 3. ch. 2. touching the transportation of felons
to New South Wales, Sfc. See also 28 Geo. 3. ch 24, and 37 Geo. 3. ch. 140.
XLI. To empower Xhejt/sfices of oyer and terminer and gaol-deli-
very of Neivgate for the county of Middlesex, to continue, 4'C.
By 25 Geo. 3. ch. 18. If a session of oyer and terminer and gaol-delivery of Newgate
for the county of Middlesex shall have been begun, before the essoign day of any term, it
shall not be discontinued by the sitting of the court of King'' s Bench, SfC.
(h) Vide 21 Geo. 3. c^. 11.
* Partly repealed by 36 Geo. 3. ch. 125. abstracted post.
HISTORIA PLACITORUM CORONA. 733
XLII. For grantii^ to his Majesty certain stamp-duties on licences
to be taken out by pawnbrokers.
By 25 Geo. 3. ch. 48. § 10. If any person shall counterfeit, tfec. any seal, stamp, or
mark, directed by this act, or shall counterfeit or resemble the impression of the same
upon any vellum, ttc. or shall utter, or use, &c. knowing, «&c. he shall be adjudged a
felon, and shall suffer death, without benefit of clergy.
XLIII. Por repealing an act made in the twenty-fourth year of the
reign of his present Majesty, intituled, ^^n act for gi^antin^ to his
Majesty certain duties on certijicates, issued with respect to the
kilting of game; and for granting other duties in lieu thereof.
Vi^le No. LXIV. post.
By 25 Geo, 3. ch. 50. § 19. If any person shall counterfeit, &c. any seal, stamp, or
mark, directed by this act, or shall counterfeit or resemble the impression of the same, or
shall utter, or use, &c. knowing, &.C. he shall be adjudged a felon, and shall suffer death,
without benefit of clergy.
XLIV. For granting to his Majesty certain duties on licences to be
taken out for vending gloves or mittens, by retail.
By 25 Geo. 3. ch. 55. fy 15. If any person shall counterfeit, &c. any seal, stamp, or
mark, directed by this act, or shall utter or use, &.c. knowing, &,c. he shall be adjudged
a felon, and shall suffer death, without benefit of clergy.
XLV. For repealing an act made in the twenty^third year of the
reign of his present JNIajesty, intituled, t^/i aot for granting; to his
Majesty a stamp duty on licences to l)e taken out by certain per-
sons uttering or vending medicines, Sj-c. and for granting other
duties in lieu thereof
By 25 Geo. 3. ch. 79. § 17. If any person shall counterfeit, «fec. any seal, stamp, or
mark, directed by this act, or shall counterfeit or resemble the impression of the same
upon any vellum, &,c. or shall utter, or use, &c. knowing, &,c. he shall be adjudged a
felon, and shall suffer death, without benefit of clergy.
XLVI. For granting to his Majesty certain duties on certificates to
be taken out by solicitors, attornies, <S'C. and other duties with re-
spect to warrants, mandateSjand authorities, to be entered or filed
of record.
By 25 Geo. 3. ch. 80. § 30. If any person shall counterfeit or forge any seal, stamp, or
mark, directed or allowed by this act, or siiall counterfeit or resemble the impression of
the same, or shall utter, or use, &c. knowing, »fcc. he shall be adjudged a felon, and shall
suffer death, without benefit of clergy.
XLVII. For granting to his Majesty certain duties on stamped vel-
lum, parchment, and paper, within that part of Great Britain
called Scotland, to replace to the revenue the salaries granted to
judges there, Sec.
By 26 Geo. 3. ch. 48. § 9. If any person shall counterfeit, &c. any seal, stam|), or
mark, directed by this act, or shall counterfeit or resemble, or cause, &c. the impression
of the same upon any vellum, &lc. or shall utter, or use, «fcc. knowing, &c. he shall be
adjudged a felon, and shall suffer death, without benefit of clergy.
733 HISTORIA PLACITORUM CORONiE.
XLVIII. For granting to his Majeaty certain sgimp duties on per-
fioneriy, hair powder, and other articles therem mentioned; and
on licences to be tai^en out by persons uttering or vending the
same.
By 2fi Geo. 3. ch. 49, § 24. If any person shall counterfeit, &c. any seal, stamp, or
mark, directed by this act, or shall counterfeit or resemble the impression of the same
upon any vellum, »fec. or shall utter, or use, &c. he shall be adjudged a felon, and shall
suffer death, without benefit of clergy.
XLIX. For better securing the duties on starch, and for preventing
frauds on the said duties.
By 26 Geo. 3. ch. 51. § 14. If any person shall forr^e or counterfeit any
I 734 J stamp or seal, to resemble any stamp or seal which shall be provided in pur-
suance of this act, or shall counterfeit or resemble the impression of iJie
same upon the papers containinjr starch, thereby to defraud, &,c. he shall be adjudged a
felon, and shall sutFer death, without benefit of clergy.
L. For regulating houses, and other places, kept for the purpose of
slaughtering horses.
By 26 Geo. 3. ch. 71. § 8. If any person shall slaughter any horse, mare, or jrelding,
foal or filly, ass or mule, or any bull, cow, heifer, ox, calf, sheep, hog, goat, or other cat-
tle, for any other purpose than for butcher's meat : or shall slay any horse, &.c. brought
dead to such slaughter-house, or other place, without taking out a licence, or without
giving notice, &,c. or shall slaughter, &:c. at any time, other than and except certain
hours in this act limited, &,c. he shall upon conviction, be adjudged, deemed, and taken
to be guilty of felony, and shall be punished by fine and imprisonment, and such cor-
poral punishment, by public or private whipping, or shall be transported beyond the seas
for any time not exceeding seven years, as the court shall direct.
By § 9. Persons destroying, limeing, or burying hides, &.c. shall, upon conviction, be
adjudged guilty of a misdemeanor, and punished by fine and imprisonment, and such
corporal punishment by public or private whipping, as the court shall direct.
LI. For better securing the duties on paper printed, painted, or
stained in Great Britain.
By 26 Geo. 3. ch. 78. § 13. If any person shall counterfeit or forge any stamp or seal,
to resemble any stamp or seal provided by this act, or shall counterfeit or resemble the
impression, &c. he shall be adjudged a felon, and shall suffer death, without benefit of
clergy.
LII. For the more effectnally carrying into execution the laws re-
lating to the duties on stamped vellum, parchment, and paper, 4'C.
[Touching general evidence, 4'c.]
By 26 Geo. 3. ch. 82. § 6. Reciting that " great difficulties have frequently arisen upon
the trial of divers informations, indictments, and other prosecutions for offences commit-
ted against his Majesty's revenue on stamped vellum, parchment, and paper, by requiring
strict proof of the commissions, deputations, or other authorities under which the said
commissioners, and the officers, and other persons appointed and employed by them to
(farry the same into execution, have acted," it is enacted, that upon the trial of any in-
formation, indictment, or other prosecution, for any offence committed against any act
or acts of parliament touching or concerning the said duties, or any of them, whereby
any person shall or may be deemed or construed to be guilty of felony, it shall be suffi-
cient to prove that such officer, &c. acted under the commissioners, without producing
or proving the particular commission, deputation, or other authority by which he was
constituted, appointed, or employed.
HISTORIA PLACITORUM CORONA. 734
LIII. For incorporating certain persons therein named, by the name
and stile of the British Society for extending the fisheries, and
improving the Sea-coasts of this kingdom ; audi to enable them
to subscribe a joint stock, and therewith to purchase lands, and
build thereon, in Scotland, <§'C.
By 26 Geo. 3, ch. 106. § 26. If any person shall forge or counterfeit the seal of the
society, or any deed or writing under tlie common seal, or shall demand any money in
pursuance of any such forged or counterfeited deed or writing, either from the society
or any members or servants thereof, knowing, >fcc. lie shall be adjudged guilty of felony,
and shall be transported in manner as by law directed, for a term not exceeding seven
jears.
LIV. For repeahng the several duties of customs and excise, and
granting other duties in lieu thereof, and for applying the said
duties, with others, composing the revenue, &;c. and for applying
certain unclaimed monies, remaining in tlie Exchequer for the
pavment of annuities on lives, to the reduction of the national
debt.
By 27 Geo. 3. ch. 13. § 46. If any person shall counterfeit, &c. any seal, stamp, or
mark, directed by this, or any former act or acts, relating to the duties under the man-
agement of the commissioners, &c. or shall counterfeit or resemble the im-
pression of the same; or shall utter^ or use, &-c. knowing, &c. he shall be f 735 J
adjudged a felon, and shall suffer death, without benefit of clergy.*
LV. For making allowances to the dealers in foreign ivlnes, for
the stock of certain foreign wines in their possession, at a certain
time, upon which the duties on importation have been paid ; and
for amending several laws relative to the revenue of excise.
By 27 Geo. 3. ch. 31. § 13. If any person shall counterfeit or forge any stamp or
seal to resemble any stamp or seal which shall be provided or made in pursuance of this
act, or shall counterfeit or resemble the impression of the same, upon any printed,
stained, painted, or dyed calico, muslin, linen, stuff, fustian, velvet, velveret, dimity, or
other figured stuff, with intent, ^c. he shall be adjudged guilty of felony, and shall suffer
death, without benefit of clergy.
LVI. For making further provisions in regard to such vessels as
are particularly described in an act made in the twenty-fourth
year of the reign of his present Majesty, for the more effectual
prevention of smuggling in this kingdom,{i) and for extending,
4*c. Sf-c.
By 27 Geo. 3. ch. 32. § 14. If any person shall forge, Sfc. any stamp or seal, or the
impression, <^-c. to resemble, S^c. those provided by this act, hp shall be adjudged a felon,
and shall suffer death, without benefit of clergy.
LVI I. For taking and swearing affidavits to be made use of in
the court of session of the county palatine of Chester, and for
taking of special bail in actions and suits depending in the same
court.
By 27 Geo.S.ch. 43. § 4. Any person who shall before any person or persons em-
powered by this act to take special bail, represent or personate any other person or
* Repealed as to duties on goat and sheep skins, by 31 Geo. 3. ch. 27. Vide ^o,
XCVIII. po8t.
CO Vide No. XXXVIII. ante; No. LXVII. and L^Xl. post.
735 HISTORIA PLACITORUM CORONA.
persons, whereby the person or persons so represented or personated may be liable to
the payinent of any sum or sums of money for debt or danjages, to be recovered in tlie
same suit or action wlierein such person or persons is or are represented or personated,
as if lie, she, or tliey, liati really acknowledged and entered into the same, he shall be
adjudged a felon, and sliall sutler and incur the same pains, penalties, and tbrfeitures, as
persons convicted of the like offences are liable to by virtue of an act past in the fourth
year of the reign of king Willium and queen Mary, intituled An act for takinfr special
hails in the country, upon actions and suits depending in the courts of King''8 Bench,
Common I'leas, and Exchequer at \V€Stininster.{k)
Vide Stat. 34 Geo. 3. ch. 46. § 5, as to personating bail, SfC. in the county palatine of
Lancaster,
LVIII. For the better and more effectual protection of stockins^
fraiyies. and the machines or engines annexed thereto, or used
therewith; and for the punishment of persons destroying or in-
juring of such stocking frames, machines, or engines, and the
frame-work knitted pieces, Ǥ'C.
Vide No. XXXI. ante, and No. LX. post.
By 28 Geo. 3, ch. .55. § 4. If any person shall by day or by night, enter by force into
any house, shop, or place, with an intent to cut or destroy any frame-work knitted pieces,
stoekitigs, or other articles, S>;c. or shall wiitully and maliciously cut or destroy any
frame-work kntited pieces, i^c. or shall wilfully and maliciously break, destroy, or dam-
age any frame, machine, engine, tool, instrument, or utensil, used in and tor the work-
ing and making of any such fran>e-work knitted pieces, «.^-c. not having the consent of
the owner so to do, i^c. he shall be adjudged guilty of felony, and shall be transported to
some of his Majesty's dominions beyond the seas, for any space or term of years not ex-
ceeding fourteen years nor less than seven years,
LIX, For raising a certain sum of money, by way of an-
\_ 736 ] mtities, to be attended with the benefit of survivorship,
in c/asses.
By 29 Geo. 3. ch. 41. § 36. Persons forging, <^c. or altering registers, «^c. or perso-
nating lite proprietor of any order, ^c. or nominee, ^c. sliall be adjudged guilty of
felony, and shall suffer death, as in cases of felony, without benetit of clergy.
LX. For preventing the wilfully burning or destroying ships, and
and the wilfully and maliciously destroying any ivoollen, silky
linen, or cotton goods, ov any implements prepared lor or used in
the manufacture thereof, in that part of Great Britain called
Scotland. ,• -^
By 20 Geo. 3. ch. 46. Any owner, Sfc. destroying any vessel with intent to defraud
underwriters, SfC. shall, upon conviction in Scotland, sutTer death, as in other cases of
capital crimes: so as to persons entering forcibly into any house, 6fC. with intent to
destroy any goods in the loom, ^-c. or tools, Sfc, upon conviction in Scotland.
LXI. For granting to his Majestt/ several additional stamp duties on.
newspapers, advertisements, and on cards and dice.
By 29 Geo. 3. ch. 50. § 13. If any person shall counterfeit, ^c. any seal, stamp, or
mark, directed b}' this or any former act of parliament, or shall counterfeit or resemble
the impression of the same, or shall utter, or use, ^-c. with intent to defraud his Majesty,
S(C. he shall be adjudged a felon, and shall sutfer death as in cases of felony, vrithout
benetit of clergy.
(A-) See an indictment for personating bail on this statute, viz. 4 W. «^- M. ch. 4. Cr.
Cir. Com. 7lh Edit. 185. It does not take away the benefit of clergy, but that of
21 Jac. 1. ch. 26, in certain cases, does. Vide observations on both these statutes same
book, p. 186. Vide also ante, 696.
HISTORIA PLACITORUM CORONA. 736
LXII, For granting to his Majesty several additional stamp duties
on probates of wills, letters of administration, and on receipts for
legacies, or for any share of a personal estate divided by force of
the statute of distributions,*
By 29 Geo. 3. ch. 51. ^ 8. If any person shall counterfeit, ^c. any seal, stamp, or
mark, directed or allowed to be used by this or any former act of parliament, or shall
counterfeit or resemble the impression of the same, or shall utter, or use, ^c. with intent,
Sfc. he shall be adjudged a felon, and shall suffer death as in cases of felony, without
benefit of clergy.
LXIII. For giving relief to such persons as have suffered in their
rights and properties, during the late unhappy dissentions in Jlme-
^ rica, 4'C. and also for making compensation to such persons as
have suffered in their properties in consequence of the cession of
the province of East Florida to the King of Spain.
By 30 Geo. 3. ch. 34. § 11. If any person shall forge or counterfeit any- order, which
phill have been made forth, or renewed, by virtue of this act, belbre the same shall have
been paid off and cancelled, or any indorsement, Sfc. or tender in payment, S[c. with
intent to defraud his Majesty, or the person to be ajjpointcd to pay off the same, or to pay
any interest thereupon, he shall be adjudged a felon, and shall suffer death as in cases
of felony, without benefit of clergy.
LXIV. For granting to his Majesty ^w additional duty on certificates
issued with respect to the killing game.(/)
By 31 Geo. 3. ch. 21. § 5. If any person shall counterfeit, «^c. any seal, stamp, or
mark, to resemble any seal, stamp, or mark, directed by this act, or shall counterfeit or
resemble the impression of the same, or shall utter, or use, SfC. he shall suffer death as
in cases of felony, without benefit of clergy.
LXV. For repealing the duties now charged on bills of exchange,
promissory notes, and other notes, drafts, and orders, and on re-
ceipts; and for granting other duties in lieu thereof.(m)
By 31 Geo. 3. ch. 25. § 29. If any person shall counterfeit, ^-c. any stamp
or mark, directed by this act, or resemble the impression of the same, or shall ] 737 \
utter, or use, ^c. he shall suffer death as in cases of felony, without benefit of
clergy.
LXVl. To render persons convicted of petty larceny competent wit-
nesses.
By 31 Geo. 3. ch. 35, Reciting that " Whereas persons convicted o? grand larceny are
by their punishment restored to their credit as witnesses, but persons convicted of /letty
larceny are rendered and remain wholly incompetent to be examined as witnesses, it is
enacted, that from and after the 24th day of June, one thousand seven hundred and
ninety one no person shall be an incompetent witness by reason of a conviction for petty
larceny.
LXVII. For explaining and amending an act, passed in the thirty-
first year of the reign of his late Majesty King George the Second,
intituled, ^n Act for the encouragement of seamen employed iji
the Royal iVayy, 4'c. and for further extending the benefits thereof
» Repealed as to receipts for legacies, and new duties granted, by 36 Geo. 3. ch. 52,
abstracted post.
{I) Vide No. XLIII. ante. (m) Vide No. LXXVII. and No. XC. post.
737 HISTORIA PLACITORUM CORONA.
to petty officers and seamen, non-commissioned officers of marines,
and marines, serving, or who may have served, on board any of
his Majesty^s ships.
Vide No. LXXIV. post.
By 32 Cleo. 3. rh. 33. § 23. If any person shall falsely make, forge, or counterfeit, c^r.
or utter, &fc. any ticket for the wages xit pay due to any petty officer or seamnn, non-
commissioned olliccr of marines, or marine, for his services on board any ship or vessel
of his Majesty, or any duplicate thereof, i^r. with intention to receive any wages, S^c.
shall suffer death as a felon, without benefit of clergy.
LXVIII. For explaining and amending an act passed in the twenty-
sixth year of the reign of liis present Majesty, intituled ^in act
for the further preventhig frauds and abuses attcndhig the pay-
ment of wages, prize-money, &,'C. and for further extending llie
benefits thereof to petty-olficers, SfC.
Vide No. LXXIV. post.
By 32 Geo. 3. ek. 34. § 29. If any person shall falsely make, forge, or counterfeit, <^-c.
or utter, i^c. any petition for a ceriificate to enable any person or persons, to obtain let-
ters of administration to any petty officer, «^-c. or shall falsely make, forge, or counterfeit,
i^-c. or utter, i^c. any certitieale for enabling him to obtain probate or letters of adminis-
tration, with the win annexed, i^c. he shall suffer death as a lelon, without benefit of
clergy.
LXIX. For enabling his Majesty to direct the issue of exchequer
bills to a limited amount, for the purposes and in the manner there-
in mentioned.
By 33 Geo. 3. ch. 29. § 48. If any person shall forge, ^'c. any certificate or certificates
of the commissioners by this act appointed, or any receipt to be given by the cashier or
cashiers of the bank oi' England, in pursuance of this act; or shall willully deliver to the
auditor of the reeei[)t of his Majesty's exchequer for the time being, 6(c. or shaU utter,
6fC. with intent to defraud his Mnjestij, or any body or bodies politic or corporate, or any
person whomsoever, he shall sufJer death as in cases of felony without benefit of clergy.
LXX. For the better preventing forgeries and frauds in the transfers
of the several funds transferable at the bank of England.
By 33 Geo. 3. ch. 30. § 1, 2, 3. Persons making, or assisting in making, transfers of
stock in any other names than the owners; or forging or assisting in forging transfers,
^•c. or making, or assisting in making, false entries in the books of the bank, ^c. shall
be deemed guilty of felony, and shall suffer death without benefit of clergy.
And by § 4. If any clerk, S^c. employed or entrusted by the governor and company,
shall knowingly or wilfully make out or deliver, S^c. any dividend icarrant for a greater
or less amount than the person or persons, on whose behalf, or pretended behalf, such
dividend warrants shall be made out, is or are entitled to, with intent, tSfC. he shall, upon
conviction, be transported for seven years.
LXXI. For better preventing offences in obstructing, de-
[ 738 1 stroying, or damaging ships or other vessels, and in ob-
structing seamen, keelmen, casters, and ship-carpenters,
from pursuing their lawful occupations.(n)
By .33. Geo. 3. ch. 67. § 5. If any seaman, keel-man, caster, ship-carpenter, or other
person, shall wilfully and maliciously burn or set fire to any ship, keel, or other vessel,
he shall suffer death as in eases of felonv, without benefit of clergy. By § 4. seamen,
keel-men, i^c. willully and maliciously destroying or damaging any ship, keel, or other
vessel (otherwise than by fire,) shall be adjudged guilty of felony, and shall be trans-
ported for any time not exceeding fourteen years, nor less than seven years. And by
(n) Vide No. XXXVIII. LVI. and LX. ante.
HISTORIA PLACITORUM CORONA. 738
$ 8. it ts provided, that no person or persons shall be prosecuted by virtue ortliis act, for
any of the offences aforesaid, unless such prosecution be commenced twelve calendar
months after the offence committed.
LXXII. For granting to his Majesty certain stamp duties on inden-
tures of clerkships to solicitors and attorneys in any of the courts
in England therein mentioned.
By 34 Ceo.Z. ch. 14. ^14. If any person shall counterfeit, Sfc. any seal, stamp, or mark,
to resemble any seal, stamp, or marlc directed by this act, or shall utter, vend, or sell any
vellum, parchment, or paper liable to such stamp duty, with such counterfeit stamp or
mark thereupon, knowing, &fc. he shall suffer death, as in cases of felony, without bene-
fit of clergy.
LXXIII. For taking of special bail in actions and suits depending
in court o( coynmon-pleas^, of the county palatine of Lancaster.
By 34 Geo. 3. ch. 46. § 5. Personating ball, ^c. is made felony, upon the same prin-
ciple as that for the county palatine of Chester, abstracted ante, No, LVII.
LXXIV. To enable petty officers in the navy, seamen, non-commis-
sioned officers of marines, and mariners, serving in his Majesty^s
navy, to allot part of their pay for the maintenance of their wives
and families.(o)
By 35 Geo. 3. ch, 28. § 30. If any person shall falsely make, forge, or counterfeit, or
cause, or procure to be falsely made, forged, or counterfeited, or willingly act, S^c. any
declaration or order for payment, or any certificate or receipt therein Ijefore described,
or mentioned ; or shall utter, ^c. he shall be adjudged guilty of felony, and shall suffer
death as a felon, without benefit of clergy,
LXXV. For granting to his Majesty several additional duties on
stamped vellum, parchment, and paper: and forrepealing a certain
exception as far as relates to bonds given as security for the pay-
ment of one hundred pounds or under, contained in an act of the
twenty-third year of his present Majesty^s reign.
By 35 Geo. 3. ch. 30. § 4 If any person shall counterfeit, ^c. any stamp to resemble
any stamp directed or allowed to be used by tliis aet, or shall counterfeit or resemble the
impression of the same; or shall utter, vend, sell, use, ^'C. he shall suffer death as in cases
of telony, without benefit of clergy,
LXXVI. For granting to his Majesty a duty on certificates issued
for using hair-powder.
By 35 Geo. 3. ch. 49. § 31. If any person shall counterfeit, S^c, any stamp or mark,
directed or allowed to be used by this act; or shall counterfeit or resemble the impressiou
of the same; or shall utter, vend, sell, use, Sjc. he shall suffer death as in cases of felony,
without benefit of clergy.
LXXVII. For granting to his Majesty certain additional duties on
receipts.
By 35 Geo. 3. ch. 55. § 17. If any person shall counterfeit, S^c. any stamp or mark,
directed or allowed to be used, or provided, made, or used in pursuance of
31 Geo. 3. ch. 35.(p) or this act, or shall counterfeit or resemble the impression f 739 1
of the same; or shall utter, vend, sell, expose to sale, or use, Sfc. he shall be
adjudged a felon, and suffer death as in cases of felony without benefit of clergy.
(o) Vide No. LXVII. and LXVIII. ante,
(p) Vide No. LXV. ante.
739 HISTORIA PLACITORUM CORONA.
LXXVIII. For granting to his Majesty certain stamp duties on sea
insurances.
By 35 Geo. 3. ch. 63. ^ 23. If any person sliall counterfeit, ^c. any stamp or mark,
direcled or allowed to be used, in pursuance of this act, or shall counterfeit or resemble
the impression of the same; or shall utter, vend, sell, expose to sale, or use, S^c. he shull
be adjudged a felon, and shall Butfer death as in cases of felony, without benefit of
clergy.
LXXIX. For making part of certain principal sums or stock and
annuities raised or created, or to be raised or created by the par-
liament of the kingdom of Ireland, on loans for the use of the
government of that kingdom, transferable, and the dividends on
such stock and annuities payable at the Bank of England, ^'C.{q)
By 35 Geo. 3. ch. 66. § 3, 4, 5, 6, 7, 8, 9. Persons forging, altering, or uttering, S(C.
receipts or debentures, SfC. or forging letters of attorney or other authority or instrument
to transfer, assign, sell, or convey any stock, c^c. or personating proprietors ; or forging
dividend warrants, Sfc. or (being officers of the bank) embezzling notes, Sfc. or making
transfers in the names of any other person or persons, than the proprietor or proprietors,
Sfc. or forging transfers, Sfc. or making false entries in the books of the Bank of Eng.
laud, with intent to defraud the governor and company of the Bank of England, or any
other body politic or corporate, or any person or persons whatsoever, shall be deemed
guilty of felony, and shall suffer death, without benefit of clergy.
By § 10. Clerks, Sfc. of the Bank making out false dividend warrants, to be trans-
ported for seven years.
LXXX. For rendering more effectual an act, passed in the first year
of the reign of King James the First, intituled, i:?/i act to restrain
all persons fro7)i marriage until their former wives and former
husbands be dead.
By 35 Geo. 3. ch, 67. § 1. Persons convicted in England of bigamy are subject to
the penalties, pains, and punishments as, by the laws now in force, persons are subject
and liable to, who are convicted of grand or petit larciny: and by § 2. if they shall be at
large within Great Britain, without some lawful cause, before the expiration of the
term for which they shall be ordered to be transported, they shall be guilty of felony,
and shall suffer death, without benefit of clergy.
By ^ 3. If found at large in Great Britain, after order of transportation, they may be
tried either in the county where they had been convicted, or in that in which they are
apprehended and taken.
LXXXI. For establishing a more easy and expeditious method for
the punctual and frequent payment of the wages and pay of cer-
tain otticers belonging to His Majesty's navy.(r)
By 35 Geo. 3. ch, 94. § 34. If any person shall falsely make, forge, Sfc. or willingly
act and assist, Sfc. or shall utter and publish as true, knowing, Sfc. any talse, forged, or
counterfeited order, bill, extract, or certificate, S(c. for the purpose of defrauding the
public, or any commissioned officer, ^c. he shall be adjudged guilty of felony, and shall
sutler death as a felon, without benefit of clergy. •
LXXXII. To prohibit, for a limited time, the making of starch,
hair-powder, and blue, from wheat, and other articles of food;
and for lowering the duties on the importation of starch, and of
other articles made thereof.
By 36 Geo. 3. ch. 6. § 13. If any person shall forge, Sfc. any stamp or seal, to rescm-
ble, ^-c. or counterfeit the impression, SfC. he shall be adjudged a felon, and shall suffer
death as in cases of felony, without benefit of clergy.
iq) Vide No. LXXXVII. post.
(r) Vide No. LXVII. LXVIII. and LXXIV. ante.
HISTORIA PLACITORUM CORONA.
740
LXXXIII. For the safety and preservation of his Majesty^s person
and government against treasonable and seditious practices and
attempts.
By 36 Geo. 3. ch. 7. § 1. Persons who shall compass, devise, S^c. the death, restraint,
ifc. of his Majesty or liis heirs, or to depose them, or to levy war, or to compel a change
of measures, SfC, to be deemed traitms, and slialj sutfer pains .of death, and also lose
and forfeit as in cases of high treason. By ^ 2. Persons in England who shall by
writing, SfC. incite or stir up the people to hatred or contempt ot bis Majesty, or the
government, Sfc. shall be guilty of high misdemeanors; and for a second offence may be
punished as in the cases of high misdemeanors, or banished or transported for seven
y^ars. And by § 3. Persons banished or transported found at large within Great Bri-
tain, without some lawful cause, before the expiration of the term for which, A-c. shall
suffer death, as in cases of felony, without lienefit of clergy : And such persons may be
tried in any county, ^'c either whereapprehended and taken, or from whejice they were
ordered to be banished or transported; and a certificate of the conviction shall be suffi.
cient proof, SfC. i
LXXXIV. For the more effectually preventing seditious meetings
and assemblies.
By 36 Ceo. 3. ch. 8. § 4. If any persons, exceeding the number of fifty, being assem-
bled contrary to the provisions lierein contained, and being required or commanded by
any one or more justice or justices of the peace, or by the sheriff of the county, or his
under-sheriff, or by the mayor, Sfc. where such assembly shall be, by proclamation to be
made in the king's name, in the form in this act directed, to disperse themselves, and
peacfeably to depart to their habitations, or to their lawful business, shall, to the number
of twelve, or more, notwithstanding such proclamation made, remain or continue to-
gether by the space of one hour after such command or request made by proclamation,
S(c. they shall be adjudged felons, and shall suffer death, as in case of felony without
benefit of clergy.
LXXXV. For repealing certain duties on legacies and shares of
personal estates, and for granting other duties thereon, in certain
cases.
By 36 Geo. 3. ch. 52. § 40. If any person shall counterfeit or forge, S(c. any stamp
directed or allowed to be used or provided in pursuance of this act; or shall counterfeit
or resemble the impression of the same, SfC. or shall utter, vend, sell, expose to sale, or
use, ^c. he shall be adjudged a. felon, and shaU auffer deatlijaa in case of felony, without
benefit of clergy. 1 w( * ','^'i ■ ( * i < i w ' l'» J i
, /•.• ' ■- ?,| .: . • •; ■ * ; J '- : -■" J ■ ... ■ ,
LXXXVL For the better collection of the duty on hats.
. [This slat, repeals part of 24 Geo, 3. aess. 2. c. 51, abstracted ante., p. 732.]
By 36 Geo.3. ch. 125. § 19. If any person shall counterfeit or forge, Sfc. any stamp
or mark directed to be allowed or used, or provided, made, or used, in pursuance of this
act, or shall counterfeit or resemble the impression of tlie same; or shall utter, vend,
sell, or expose to sale, Sfc. any piece of silk, linen, S(e. with such counterfeit mark or
stamp thereon, knowing, SfC. or shall privately or fraudulently use any stamp, Sfc. he
shall be adjudged a felon, and shall suffer death as in cases of felony, without benefit of
LXXaVII. For making certain annuities, created by the parliament
of the kingdom of Ireland, transferable, and the dividends thereon
payable, at the Bank of England: and for the better security of
the proprietors of such annuities, and of the. governor and com-
pany of the Ba7ik of England. (s) ■ ;■ r V
By 37 Geo. 3. ch. 46. § 3, 4, 5, 6, 7, 8, 9. Persons forging, altering, SfC. receipts or
debentures; or forging letters of attorney, Sfc. or personating proprietors; or forging or
VOL. I. — 60
(«) Vide No. LXXIX. ante.
740 IIISTORIA PLACITORUM CORONiE.
uttering forged dividend warrants, S^c. or officers of the bank embezzling notes, Sfc. or
making transfers in other than proprietors names, ^c. or forging or uttering forced
transfers, ^c. or making false entries in the books of the Bunk of England, «.^c. with
intent to defraud the governor and company of the said bank, or any other body politic
or corporate, or any person or persons wliatsocvcr, shall be deemed guilty of felony, and
fshall suffer death, without benefit of clergy. By § 10. Officers of the bank making out
false dividend warrants^ to be transported for stven years.
LXXWIII. For the better prevention and punishment of
\_ 741 J attempts to seduce persons serving ni his Majesty^ s forces^
by sea or land, from their duty and allegiance to his Ma-
jesty, or to incite them to mutiny or disobedience.
Vide No. XCIV. post.
By 37 Geo. 3. ch. 70. § 1. Any person attempting to seduce any sailor or soldier fronn
his duty, or inciting him to mutiny, ^c. to be adjudged guilty of felony, and to suffer
death as in cases of felony, without benefit of clergy. By § 4. To continue and be in
force until the expiration of one month after the commencement of the then next session
of parliament. Continued for a limited time by 38 Geo. 3. ch. 6. And further continued
by 39 Geo. 3. ch. 4. till six weeks after the commencement of tlic then next session.
LXXXIX. For more etlectnally restraining intercourse with the
crews of certain of his Majesfy's ships now in a state of mutiny
and rebellion, and for the more effectual suppression of such tnu-
tiny and rebellion.
^'ide No. XCIV. post.
By 37 Geo. 3. ch. 71. § 3. Persons communicating with the crew or assisting them
shall, on conviction thereof, be adjudged guilty of felony, and shall suffer ^caih as in
cases of felony, without benefit of clergy: And by § 4. All persons voluntarily remain-
ing on board after knowledge of the declaration therein mentioned, shall be adjudged
guilty of piracy and felony, and shall suffer such pains of death and loss of lands, goods,
and chattels, as any pirates or felons by virtue of an act, made in the eleventh year(t)
of King William the Third, intituled, An act for the more effectual suppression of piracy,
or any other ael, ought to suffer. By ^ 9. To be in force until the expiration of one
montii after the commencement of the then next session of parliament
XC. For granting to his Majesty certain stamp-duties on the seve-
ral tnatters{u) therein mentioned, and for better securing the
duties on certificates to be taken out by solicitors, attornies, and
others, practising in certain courts of justice in Great Britain.
By 37 Geo. 3. ch. 90. § 5. If any person shall counterfeit, ^c. any stamp directed or
allowed to be used by this act, or shall counterfeit or resemble the impression of the
same, with intent, S^c. or shall utter, vend, or sell, any vellum, S^c. witli such counterfeit
stamp or mark thereupon, knowing the same to be counterfeit, or shall privately or
fraudulently use any stamp directed or allowed to be used by this act, with intent, ifc.
he shall be adjudged a felon, and shall suffer death as in cases of felony, without benefit
of clergy.
(t) So in the purview of stat. 37 Geo. 3. ch. 71 ; but mentioned 11 & 12 W. 3. c. 7. in
the margin, which is right, as appears by 4 Blac. Com. 72, and the several statute
books of Haickins, Rvjfhead, and Runnington. If a statute be recited as of the fourth
year of the reign, i^c. and it appears to have been made in tJie fourth and fifth years,
<^-c. the variance is fatal. Rann v. Green, Coxcp. 474. Vide also Rex v. Trelawney,
1 T. R. 222, and Watson v. Shaw and others, 2 T. R. 654.
(u) Promissory Notes are parcel of these matters. Vide No. LXV, &. LXXVII, ante,
and also No. CVI, post.
HISTORIA PLACITORUM CORONA. 741
XCI. For granting to his Majesty an additional stamp duty on deeds.
By 37 Geo. 3. f A. 111. § 5. If any person shall counterfeit, ^c. any stamp or mark,
directed or allowed to be used by this apt, or shall counterfeit or resemble the impression
of the same, with intent, &jc. or shall utter, vend, or sell, any vellum, parchment, or
paper, with such counterfeit mark or stamp thereupon, knowino^, <^c. or shall fraudu-
lently Ur^e any stamp or mark directed or allowed to be used by this act, with intent, A-c.
he shall be adjudged a felon, and shall suffer death as in cases of felony, without benefit
of clergy.
XCII. For the better preventing the forging or counterfeiting the
names of ivitnesses to letters of attorney, or other authorities or
instruments, for tlie transfer oi stocks or funds which now are or
by any act, or acts of parhament sliall hereafter be made
transferable at the Bank of England, or for the transfer f 742 "I
of any part of the capital stock of the governor and com-
pany of the Bunk of England caWed bank stock; or any part of
the stoc/cs or funds under the management of the South Sea Com-
pany, or East India Company; or for the receipt of dividends, 4'c.
By 37 Geo. 3. ch. 122. § 1. If any person shall falsely make, forge, Sfc. the name or
names, hand-writing, or hand- writings, of any witness or witnesses attesting the execu-
tion of any letter of attorney, or other authority, or instrument, to transfer, &c. or shall
utter, or publish, as true, any such letter of attorney, or other authority, or instrument
^•c. knowing such name or handwriting to be false, forged, or counterfeited, he shall be'
adjudged guilty of felony, and shall be transported for seren years, or shall be adjudged
to suffer such lesser punishment as the court, before whom such offender shall be tried
shall think fit to award.
XCIII. To prevent the counterfeiting any copper-coin in this realm
made, or to be made, current by proclamation, or any foreign gold
or silver coin; and to prevent the bringing into this realm, or
uttering, any counierieil foreign gold or silver coin.
By 37 Geo. 3. ch. 126. § 4. If any person shall utter or tender in payment, or give
in exchange, or pay or put off any such false or counterfeit coin as aforesaid, resembling
or made with intent to resemble or look like, any gold or silver coin of any foreign
prince, state, or country, or to pass as such foreign coin, knowing the same to be false
or counterfeit, he shall suffer six months imprisonment, and find sureties for Jiis good
behaviour for six months more; and if he shall be convicted a second time for the like
offence, he shall suffer two years imprisonment, and find sureties for his good behaviour
for two years more: And if he shall afterwards offend a third time, in like manner he
shall be adjudged to be guilty of felony, without benefit of clergy.
XCIV. To enable his Majesty more easily and effectually to grant
conditional pardons to persons under sentence by nuval courts
martial, and to regulate imprisonment under such sentences.
Vide No. LXXXVIII. and LXXXIX. ante, and also No. Cll.post.
By 37 Geo. 3. ch. 140. § 1. If his Majesty shull extend his mercy to persons liable to
death by the sentence of a naval court martial, a justice of the king's bench, or common
pleas, or a baron of the exchequer, may, on notification from the secretary of state, allow
the benefit of a conditional pardon as if it had passed under the great seal, and shall
make orders accordingly : And by § 6. The laws touching the escape of felons under
sentence of death shall apply to offenders under like sentence by a naval court, and to
all persons aiding, abetting, or assisting in any such escape, if the offender shall have
been allowed the benefit of a conditional pardon.
742 HISTORIA PLACITORUM CORONA.
XCV. For granting to his Majesty an aid and contribution for the
prosecution of the war.
By 38 Geo. 3. ch. 16. § 95. Persons forging or altering certificates, receipts, or dupli-
cates, &c. or knowingly uttering or publishing them as true, with intent, &c. shall be
adjudged guilty of felony, and shall suffer death, without benefit of clergy. By § 107, it
is provided, tliat the present act may be altered, varied or repealed by any act or acts"i,o
be made in this session of parliament. Vide income act, viz. 39 Geo. 3. ch. 13. which, by
§ 1, repeals the above stat. in part; but § 36, extends the power of it in other respects,
&c.(d)
XCVI. To continue until the first day of August, one thousand
eight hundred, and until the end of the then next session of parlia-
ment, and amend an act made in the thirty-third year of the reign
of his present Majesty, intituled, Jin act for establishing regula-
tions respecting aliens arriving in this kingdom, or resident
therein, in certain cases. [w)
By 38 Geo. 3. ch. 50. § 24. In case any person ordered or adjudged to be
I 743 I transported in pursuance of this act, shall be found at large within this realm,
after sentence of transportation pronounced, he or she shall be deemed guilty
of felony, and shall suffer death as a felon without benefit of clergy.
XCVII. For granting to his Majesty a duty on certificates issued
with respect to armorial-bearings or ensigns.
By 38 Geo. 3. ch. 53. § 18. If any person shall counterfeit, &c. any stamp or mark
directed or allowed to be used or provided, in pursuance of this act; or shall counterfeit
or resemble the impression of the same, upon any vellum, parchment, or paper, with
intention to defraud, &c. or shall utter, vend, sell, or expose to sale, any vellum, parch-
ment, or paper, liable to the said duty, with such counterfeit mark or impression there-
upon, knowing, &c. or shall privately or fraudulently use any stamp directed or allowed
to be used by this act, with intent, &c. he shall be adjudged a felon, and shall suffer
death as in cases of felony, without benefit of clergy,
XCVIII. To amend several laws of excise relating to coach-makers,
auctioneers, beer and cyder exported, certificates and debentures,
stamps on hides and s/cifis, drawbacks on wines and sweets, and
ale and beer licences.
By 38 Geo, 3. ch. 54. § 9. If any person shall, with intent to defVaud his Mdjesty,
counterfeit or forge, &c. any debenture in any case in which a debenture is by any act
or acts of parliament relating to the duties of excise required or directed to be given or
granted, or shall knowingly or willingly utter, publish, or make use of any such coun-
terfeited or forged debenture, he shall be adjudged guilty of felony, and shall suffer death
as a felon, and have execution awarded against him, as persons attainted of felony, with-
out benefit of clergy.
By § 10. The pains of death imposed by the 9 Ann, ch. 11. 10 Ann, ch. 26. and
5 Crto. 1. ch, 2. relating to duties on hides and skins, &c. declared to be in force against
persons who counterfeit stamps provided by those three statutes, or in pursuance of the
acts of 28 Geo. 3. ch. 37. and 1 Geo. 3. ch. 21. {x)
XCIX. For making perpetual, subject to redemption and purchase
in the manner therein stated, the several sums of money now
(») No repeal by the latter stat. of the felony mentioned in the above act of 38 Geo. 3.
ch 16. § 95.
(ic) Amended, and further powers given by stat. 38 Geo. 3. ch. 77. vide 33 Geo, 3.
cA. 4.
(a;) Vide No. LIV. ante.
HISTORIA PLACITORUM CORONA. 743
charged in Great Britain as a land-tax for one year, from the
twenty-fifth day of March one thousand seven hundred and
ninety-eiglit.(y)
By 38 Geo. 3. ch 60. § 118. If any person shall forisre, counterfeit, or alter, &c. any
contract or contracts for the sale of any land-tax, or any assignment or assignments of
such contract or contracts, or of any portion of land-tax therein comprised, or any cer-
tificate or certificates of the commissioners of land-tax or of supply, or any chief magis-
trate authorized by this act to make out the same, or of the surveyor-general of the
land revenue of the crown, or of the duchy of Cornwall, or any certificate or receipt of
the cashier or cashiers of the governor and company of the bank of England, or any
certificate, &c. directed by this act to be made out by the proper officer to the commis-
sioners for the affairs of taxes, &c. or shall wilfully delis'gr, <fec. or utter, &-c. he shall be
adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of
clergy.
C. More effectually to prevent, during the war, persons, being his
Majesty's subjects, for voluntarily repairing to or remaining in ,
France, or any country or place united to France, or occupied by
the armies of France; and to prevent correspondence with such
persons and with his Majesty's enemies.
By 38 Geo. 3. ch. 79. § I. If any subject of his Majesty shall, during the war, go, or
embark to go to France or any place united thereto, or occupied by its armies,
he shall be adjudged guilty of^ felony, and shall suffer death as in cases of f 744 J
feluny, without benefit of clergy. By § 4, If any subject shall correspond with
any such other subject of his Majesty, so going to, and remaining in France, he shall be
deemed guilty of felony, and shall suffer death without benefit, &c. By § 5. If any subject
of his Majesty shall, during the war, correspond with the persons exercising the powers of
government in France, SfC. or with any of their agents, knowing such agent or agents to be
employed, &,c. he shall be adjudged guilty of felony, and shall suffer death, without benefit,
&c. By § 8. In ease any person ordered or adjudged to be transported under this act, shall
be found at large within this realm, after sentence of transportation pronounced, and
before the time shall be expired for whicli such person was sentenced to be transported,
he shall be deemed guilty of felony, and shall suffer death, without benefit, &c. By § 2.
If any subject of his Majesty shall, during the war, knowingly and wilfully hire, let,
engnge, &c. or be concerned in the hiring, Sfc. any vessel, with intent that any of his
Majesty^s subjects should embark therein with intent to go to France, S(c. he shall be
transported for any time not exceeding seven years, to such place as his Majesty in
council shall direct.
CI. To repeal the duties imposed by an act, made in the last session
of parliament, for granting an aid and contribution for the prose-
cution of the war ; and to make more effectual provision for the
like purpose, by granting certain duties upon income, in lieu of
the said duties.
Vide 33 G.3. c. 22; cA. 72.
By 39 Geo. 3. ch. 13. § 32. If any person shall give false evidence on oath or affir-
mation, or in any affidavit or deposition, &c. before the commissioners in the said act
mentioned, he shall, upon conviction, be subject and liable to such pains and penalties,
as by any law now in being, persons convicted of wilful and corrupt perjury are subject
and liable to. {yy)
(y) Certain duties to which this act relates, to be levied within one year from March
25., 1799, &c. by 39 Geo. 3. ch. 3. See further on this subject of taxation, 39 Geo. 3.
ch.G; ch. 21; cA. 40; ch. 43;' and ch. 108.
iyy) ^y ^ ^^o- 2. cA- 25. § 2. Persons guilty of wilful and corrupt perjury, or subor-
nation of perjury, may be imprisoned or transported for seven years; and if they escape;
break prison, or return, Sec. shall suffer death as felons, without benefit of clergy. Made
perpetual by 9 Geo, 2. ch, 18.
744 HISTORIA PLACITORUM CORONA.
CII. For remedying certain defects in the law respecting offences
committed upon the high seas.
Vide No. XCIV. ante.
By 39 Geo. 3. cli. 37. § 1. All offences whatever committed on (be high seas, shall be
liable to the same punishments as if committed on shore, and shall be enquired of, heard,
tried, determined, and adjudged, in tlie some manner as treasons, felonies, murders and
confederacies, are directed to be, by stat. 28. Hen. 8. ch. 15. And by § 2. Persons tried
for murder or nianslauglitcr, and tbund guilty of manslaugiiter only, shall be entitled to
the benefit of clergy, and be subject to the sume punishment as if committed on land.(z)
CIII. For making perpetual so much of an act made in the nine-
teenth year of the reif n of his Majesty as relates to the punish-
ment of burning in the hand of certain persons convicted of
felony, within the benefit of clergy.
By 39 Geo. 3 ch. 45. So much of the stat. of 19 Geo. 3. ch. 74. as relates to the pun-
ishment of burning offenders convicted of felony, within the benefit of clergy, in the
hand, is made perpetual.
Vide No. XXVI. ante, and 39 Geo. 3. ch. 46, which perpetuates so much of the said
stat. of 19 Geo. 3. ch. 74, as relates to the lodgin<rs of Judges at county assizes. Vide
also 39 Geo. 3. ch, 51 and 52. which continue (until 25th March, 1802) such parts of said
stat. 19 Geo. 3. ch. 74, tfcc. as relate to the confinement ofjclons in temporary places, &-c.
or penitentiary houses, &.c.
CIV. For the more effectual suppression of societies established for
seditious and treasonable purposes; and for better preventing
treasonable and seditious practices.
Vide No. LXXXVIII, and LXXXIX. ante.
By 39 Geo. 3. ch. 79. § 8. Persons convicted, upon indictment, of the offences
r 745 "J and practices mentioned in this act, shall and may be transported for the term
of seven years, hi the manner provided by law for transportation of offenders,
or imprisoned for any time not exceeding two years, as the court sliall think fit; and
every such offender, who shall be ordered to be transported, shall be subject and liable
to all laiDs{a) concerning offenders ordered to be transported.
CV. To protect masters against embezzlements by their clerks or
servants.
By 39 Geo. 3. ch. 85. If any servant or clerk shall, by virtue of his employment,
receive or take into his possession any money, goods, bond, bill, note, banker's draft, or
other valuable security or effects, for or in the name or on the account of his master or
employer, and shall fraudulently embezzle, secrete, or make away with the same, or any
part thereof, he shall be deemed to have feloniously stolen the same from his master or
employer, for whose use, or in whose name, or on whose account the same was or were
delivered to, or taken into the possession of such servant, or clerk. SfC. and every such
offender, his adviser, procurer, aider, or abettor, being thereof lawfully convicted or
attainted, shall be liable to be transported for any term not exceeding /o«r<ee« years, iu
the discretion of the court before whom such offender shall be convicted or adjudged.
CVI. For granting to his Majesty certain stamp duties on bills of
exchange and promissory notes for small sums of money.
By 39 Geo. 3. ch. 107. § 25. If any person shall counterfeit or forge atiy stamp or
mark, directed or allowed to be used by this act, with intent, S^c, or shall fraudulently
use any such stamp or mark, witli intent, ^c. or shall utter, vend, sell, or expose to sale,
(2) The stat. of 28 H. 8, does not extend to offences committed in creeks or ports
within the body of a county. 3 Bac, Abr, 4th edit. 820.
(a) Vide note under No. CI. ante.
HISTORIA PLACITORUM CORONA. 745
any vellum, ^'c. with an)' such counterfeit stamp or mark thereupon, knowing, SfC. he
shall be adjudged a felon, and shall suffer death, without benefit of clergy.
CVII. For rendering more commodious, and for better regulating,
the port of London.
By 39 Geo. 3. ch. 69.(6) § 104. If any person shall wilfully and maliciously set on
fire any of the works to be made by virtue of this act, or any ship or other vessel lying
or being in any canal, dock, bason, cut, or other works to be made by virtue of this act,
he shall be adjudged guilty of telony, without benefit of clergy. And persons otherwise
wilfully damaging the works, or vessels, S(C. shall suffer punishment by fine, imprison-
ment, or transportation, at the discretion of the judge, Sfc. before whom such offender
shall be tried and convicted.
CVIII. For enabling his Majesty to incorporate by charter a com-
pany to be called The Globe Insurance Company, for insurance
on lives, and against loss or damage by fire, and for other pur-
poses therein mentioned.
, By 39 Geo. 3. ch. 83.(c) § 22. If any person shall forge or counterfeit the common
seal of the said corporation to be created and established pursuant to this act, or shall
forge, counterfeit, or alter, any policy, deed, bill, bond, or obligation under the common
seal of the said corporation, or shall offer to dispose of, or pay away the same, knowing
the same to be such ; or shall demand the money therein contained, or pretended to be
due thereon, of or from the said corporation, or any of the officers thereof, knowing, i^c.
with intent to defraud the said corporation, or any person or persons whomsoever, he
shall be deemed guilty of felony, and suffer as in cases of felony, without benefit of
clergy. By § 23. To be deemed, adjudged, and taken to be a public act.
The Charter mentioned in this act is not yet complete, it being under the considera-
tion of the pripy council upon the attorney -general's report.
j
STATUTES RELATING TO FELONY SINCE THE LAST EDITION OF THE
WORK.
Defacing the mark on stores, punishable by 14 years transportation. 39 4*40 Geo.
IIL c. 89. ^4.
Setting fire to works or vessels in the London canals, docks, &c. 39 Geo. III. c. 69.
§ 104 ^ 39 (^ 40 Geo. III. c. 89. ^ 4.
Persons disobeying orders of quarantine. 39 «Sf 40 Geo. III. c. 80. § 11. 21.
Masters of vessels concealing the plague. 39 ^ 40 Geo. III. c. 80. § 16.
Persons escaping from Lazarets. Id. § 23.
Forging certificate of quarantine. Id. § 27.
Clandestinely conveying, goods, letters, &c. from vessels under quarantine. Id. § 28.
Returning from transportation under 39 <Sf 40 Geo. III. c. 89. § 6.
Aliens returning from transportation for life. 43 Geo. 111. c. 155. § 39.
Counterfeiting receipts for contributions under Loan acts. 41 Geo. III. c. 3. § 24,
Personating pensioners, &,c. 43 Geo. III. c. 119. § 17.
Forging land tax redemption contracts. 42 Geo. III. c. 116. § 194.
Maliciously shooting, stabbing, &.c. with intent to murder, &c. administering poison
to women quick with child to procure miscarriage, &,c. setting fire to any house, out-
house, &c. 43 Geo. III. c. 58. § 1, 2.
(6) In order to facilitate the labour of others, it has been judged necessary to observe
here, that there are two of these numbers in the statute books, and that this act will be
found under a new head, intituled, "PUBLIC LOCAL AND PERSONAL ACTS,"
in p. 228, Tol. 14. of Runnincrton's edition of the Statutes, and vol. 18, oi Ruffhead's.
So as to the next ch. which begins in those books, p. 261.
(c) Vide note (6) supra. '
746 HISTORIA PLACITORUM CORONA.
Secreting post-office letters, <fec. containing any security, «tc., procuring or receiving
the same. 42 Geo. III. c. 81. § 1-2.
Casting away or destroying siiips. 43 Geo. III. c. 79. and c. 113.
Counterfeiting stamps, &c. in Great Britain. 41 Geo. III. c. 10. § 8; c. 86. § 16; and
43 Geo. III. c. 126. § 11; c. 127. § 8.
Counterfeiting starch stamps in Great Britain. 42 Geo. III. c. 14. ^ 6.
Counterfeiting stamps, marks, &lc. on medicine wrappers. 42 Geo. III. c. 56. ^ 22.
Forging paper for bank notes or engraving bank notes without authority. 41 Geo. III.
Forging or altering foreign bills of exchange. 43 Geo. III.c. 130. § 1. 3.
Forging debentures for teas exported to Ireland. 41 Geo. III. c. 75. § 7.
Forging certificates of excise. 41 Geo. III. c. 91. § 5.
Forging post-office franks, &-c. 43 Geo. III. c. 28. § 22.
Damaging, stealing or destroying works on canals, roads, railways, enclosures, &c.
41 Geo. III. c. 22. §09.70: c. 21. §78; c. 3.3. § 71 ; c. 72. § 49 ; c. 83. § 33 ; c, 74. §64;
c. 116. §42; c. 127. § 112; c. 128. § 108; c. 135. § 61; c. 136. §21. 42 Geo. III. c. 32.
§ 46; c. 19. §33; c. 22. § 49.50; r. 24. §46. 49; c. 58. §45; c. 74. §53; c. 112. §53;
c. 114. §78, 43 Geo. III.c. 102. § 32; c. 22. § 20; c. 33. § 22; c. 35. § 82 ; c. 49. §47;
c. 55. §19; c. 60. § 109; c. 88. § 13; c. 126. §75; c. 128. §81 ; c. 130. § 5; c. 72. § 121.
Casting away or destroying ships. 43 Geo. III. c. 79. and c. 1 13.
Shooting at otlicers of navy customs, «&c. or firing at a vessel. 45 Geo. III. c. 121. § 11.
Counterfeiting stamps, &cc. in Great Britain. 41 Geo. III. c. 10. § 8; c. 86. § 16k
43 Geo. III. c. 126. § 11 ; c. 127. § 8. 44 Geo. III. c. 98. § 9. 45 Gen. III. c. 28. § 8.
Stamps on paper wrappers (inaccurately worded ) 46 Geo. III. c. 112. § 2.
Forging exchequer bills. 48 Geo. III.c. I. § 9.
-Stealing from oyster beds. 43 Geo. III. c. 144. § 1.
Fraudulently obtaining letters containing bank notes. 47 Geo. III. St. 2. c. 53. § 9.
Bank notes, engraving plates. &c. impressions from which shall resemble bank notes
or uttering any paper which shall resemble bank notes. 52 Geo. III. c. 138. § 5.
Counterfeiting bank tokens. 51 Geo. III. c. 110. § I. or bringing counterfeit tokens
into the kingdom, § 2.
Forging stamps or seals for stamping starch. 52 Geo. Ill, c. 27. § 13.
Making false conies of entries or altering &c. register books of parishes. 52 Geo. III.
c. 146. § 14.
Aiding prisoners of war to escape. 52 Geo. ITI. c. 156. § 1.
Administering or taking unlawful oaths. 52 (weo. III. c. 104. § 1.
Aliens returning from transportation tor life. 43 Geo. III. c. 155, § 39.
Forging draft, on the Receiver General. 46 Geo. III. c. 150, § 10.
Forging deeds, wills, securities, receipts, orders for money, «tc. or uttering the same
to defraud any person or corporation. 45 Geo. III. c. 89, § 1. Altering and extending.
2 Geo.U. c. 25; 7 Geo. II. c. 22; 15 Geo. II. c. 13; 41 Geo. Ill, c.39.
Forgery of drafts, &c. of public oifieers. 46 Geo. III. c. 45, §9; c. 142, § 14;
c. 150, § 20.
Counterfeiting receipts for contributions under loan acts. 41 Geo. III. c. 3, § 24.
Personating pensioners, &c. 43 6'co. III. c. 119, § 17.
Forging contracts for land tax redemption. 42 Geo. III. c. 116, § 194.
Forging lottery tickets. 44 Geo. III. c. 93, § IL
Disobedience to post-office orders. 45 Geo. III. c. 10, § 23.
Personating seamen or forging wills or letters of attorney of seamen, &c. 45 Geo. III.
Forgery of drafts, «!tc. of commissioners of land revenue. 50 Geo. III. c. 65, § 18.
Forger}' of stamps provided under 50 Geo. III. c. 35, § 6.
Forgery of certificates, &,c. of commissioners for the issue of Exchequer bills.
51 Geo. III. c. 15, § 71.
Destroying stocking or }ac6 frames. 53 Geo. III. c. 16, § 1..
Wilfully dcstroving or demolishing any buildings, engines, or machinery therein.
52 Geo. III. c. 130, § 1,2.
Embezzling letters by persons employed by post-office department. 52 Geo. III.
c. 143, §2-4.
Shooting at or wounding revenue officers. 52 Geo. Ill, c. 143, § 12.
l^orging names of register, «Scc. of the High Court of Admiralty. 53 Geo. Ill,
c. 151, §12. ' '
Forsring, &,c. or altering declaration of return of premium on a policy of assurance,
54 Geo. III. c, 133, § 10.
HISTORIA PLACITORUM CORON.E. 747
Cutting or destroying frames and frame-work of knitting machines. 54 Geo. III.
c. 42.
Tiie 52 Geo. III. c. 44, § 47, relative to the punishment of persons convicted of felony
without benefit of clergy repealed by 53 Geo. III. c. 162.
• Forging certificates, receipts, bills of credit, transfers, powers, &c. made felony.
53 Geo. 111. c. 41, §26, 27; 54 Geo. III. c. 13,6 5; 54 Geo. III. c. § 70.38; 54 Geo. III.
c. 86, § 43; 54 Geo. III. c. 110. § 6; 54 Geo. HI. c. 151, § 16.
Falsely representing the next of kin of seamen. 55 Geo. III. c. 60, § 30.
Forging names of ministers, &c. required under 55 Geo. III. c. 60, § 31.
Kescuing or attempting to rescue convicts from the penitentiary. 56 Geo. III.
c. 63, § 44.
Aliens sentenced to transportation guilty of felony if found at large. 55 Geo. III.
c. 54. § 36.
Demolishing engines, &c. belonging to collieries. 56 Geo. III. c. 125, §. 1.
Felons making their escape after condemnation to transportion or being found at
large before expiration of their sentence. 56 Geo. III. c. 27, § 7, 8, 16.
Forging stamps under Stamp act. 55 Geo. III. c. 184, § 7.
Forging newspaper stamps. 55 Geo. III. c. 185, § 6.
Forging gold and silver plate duty marks. 55 Geo. III. c. 185, § 7.
Forging letters of attorney or wills of seamen, or knowingly uttering the same.
55 Geo. III. c. 60, § 32.
Forging cerlicates, powers, tfcc. for half-pay of naval officers. 56 Geo. III. c. 101, § 5.
Personating seamen, &.c. 55 Geo. III. c 60, § 32.
Forging certificates, bills, &c. for pay of navy officers. 57 Geo. III. c. 20, § 10.
Forging, altering, &,c. certificates, &,c. of commissioners for issuing Exchequer bills
for carrying public works, &.c. 57 Geo. III. c. 34, § 63.
Forcibly entering any house, &c. with intent to destroy, &.c. any machinery or goods
therein. 57 Geo. III. c. 126, § 2.
Persons falsely assuming the names or character of those entitled to prize-money or
pay in order to receive the same. 57 Geo. III. c. 127, § 4; 59 Geo. III. c. 56, § 18.
An act for more effectually preventing seditious meetings and assemblies, to continue
in force until the end of the session of parliament next after five years from the passing
of the act.
The act of 60 Geo. III. c. 6. 6 8. 11. 14. § 8. That if any person or persons shall attend
any meeting whatever holden for the pretext of deliberating upon any public grievance
or upon any matter or thing relating to any trade, manufacture, business or profession,
or upon any matter in church or state, or of considering, proposing, or agreeing to any
petition, complaint, remonstrance, declaration, resolution, or address, upon the subject
thereof, contrary to the provisions of this act it shall be lawful for any one or more jus-
tice or justices of the peace in and for any county or the sheriff" or under-sheriff" of any
county or the mayor or head officer or any justice of the peace of any city or town cor-
porate within which any such meeting shall be held to make or cause to be made pro-
clamation in the king's name in the form directed in this act commanding any person
so Ufilawfully attending any such meeting immediately and peaceably to depart there-
from : and if any person or persons so ordered to depart as aforesaid shall not upon such
proclamation depart from any such meeting within the space of a quarter of an hour after
such proclamation made that then and in every such case every such person so continu-
ing and not departing as aforesaid shall upon being thereof lawfully convicted be adjudged
to be guilty of felony and shall be liable to be transported for any period not exceeding
seven years.
§ ll. That it shall be lawful for any one or more justice or justices of the peace in
and for any county or for the sheriff" or under-sheriff" of any county or for the mayor or
other head officer or any justice of the peace of any city or town corporate within which
any meeting shall be held or persons shall assemble for the purpose of holding any meet-
ing contrary to the provisions of this act, or where any person or persons not entitled to
attend any meeting or assembly as aforesaid, shall refuse or neglect to depart therefrom
for the space of a quarter of an hour after such proclamation' made as aforesaid to make
or cause to be made such proclamation in the king's name in the manner and form herein-
after directed to command all persons there assembled to disperse themselves and peacea-
bly to depart to their habitations or to their lawful business and if any such persons so
assembled as aforesaid shall, to the number of twelve or more, notwithstanding such pro-
clamation made, continue together by the space of half an hour after such proclamation
made, that then and in every such case every person so continuing being thereof legally
748 HISTORIA PLACITORUM CORONA.
convicted shall be adjudged guilty of felony and be liable to be transported for any term
not exceeding seven years,
§ 14. That if any person or persons do or shall with force and arms wilfully and know-
ingly oppose, obstruct, or in any manner wilfully and knowingly let, hinder, or hurt any
justice of the peace or other persons authorized as aforesaid, or any person acting in aid
or assistance of any justice of the peace who shall attend or disperse any such meeting
as aforesaid, or shall be going to attend or disperse any such meeting, or any justice of
the peace or peace officer or any person or persons acting in aid or assistance of any jus-
tice of tlie peace or other officer who shall begin to proclaim or be going or endeavouring
to make any proclamation authorized or directed to be made under the provisions of this
act, whereby such proclamation shall not be made : and also, if any persons so being
assembled as aforesaid to whom any such proclamation as aforesaid should or ought to
have been made of the same had not been hindered as aforesaid, shall to the number of
twelve or more continue together and not disperse themselves within half an hour after
such let or hindrance so made having knowledge of such let or hindrance so made; and
also if any person so being at any sucli assembly as aforesaid shall with force and arms
wilfully and knowingly oppose, obstruct, or in any manner wilfully and knowingly let,
hinder, or hurt any justice of the peace or other magistrate or any peace officer or other
person acting in their aid or assistance in the arresting, apprehending, or taking into
custody or detaining in execution of any of the provisions of this act any person or per-
sons or endeavouring so to do that then and in every such case every person so offending
being thereof legally convicted shall be adjudged guilty of felony and be liable to be
transported for any term not exceeding seven years.
Cultinar aicay or defacing buoy-ropes, &c. transportation for not exceeding 14 years.
14-2 Geo. IV. c. 76. ^ G.
Engraving, S^-c. on any plate for producing an impression of all or any part or engrav-
ing on any plate any resemblance of ground-work of a bank of England note, or using
such plate or having such plate in custody or possession; or uttering any impression
from it: transportation for 14 years. 1 Geo. IV. c. 92. § 1.2.
The felonies which are capitally punishable by 39 Eliz. r. 9; 4 Geo. I.e. 11 ; 5 Geo.
II. c. 30; and 8 Geo. II. c. 20 ; are made punishable by. transportation for life or not
less than 7 years by 1 Geo. IV. c. 115.
Privately stealing to the value of 5s. and under \5l. Transportation for life, or not
less than seven years. 1 Geo. IV. c. 117.
Turnpike gates, maliciously destroying, &c. Seven years transportation. 3 Geo. IV.
c. 126. § 128.
Forging certificate, &.c. of commissioners for issuing exchequer bills. 3 Geo. IV. c. 86.
§54.
Forging certificates under superannuation act. 3 Geo. IV. c. 113. § 23.
Forgery of handwriting, &c. of the accountant general, &,c. of the court of exchequer
to a certificate to receive suitor's effects in the beink, &,c. ; or fraudulently claiming pay-
ments. 1 Geo. IV. c. 35. § 27.
Forging Sfc. certificate &c. under 1 & 2 Geo. III. c. 73. § 15.
Forging Sfc. receipts or certificates for annuity under 3 Geo. IV. c. 51. § 15.
Procuring others to utter forged letters of attorney, &c. or to apply for pay on probates
of forged wills of seamen or marines. 1 &, 2 Geo. IV. c. 49. § 4.
Any person or persons pulling down plucking up or otherwise destroying or dam.
aging turnpike gates or any chain &,c. belonging thereto or any toll houses or weigti-
ing machines or rescuing persons in custody for any of these offences, to be adjudged
guilty of felony and to be transported for seven years. 3 Geo. IV. c. 126. § 128.
For general enactments relating to felonies, see 6 Geo. IV. c, 25. materially altering
the law in many particulars.
Assaulting custom house officer made felony and punished with transportation for
seven years or imprisonment with hard labour not exceeding three years. 6 Geo. IV.
c. 108. § 59. ' •
Bankrupt not surrendering and submitting to be examined &c. or removing or em-
bezzling to the value of lOZ. to be transported for life or not less than seven years, or be
imprisoned only or imprisoned with hard labour for not exceeding seven years. € Geo. IV.
c. 80. ^ 143.
Entering and taking trees plants &c. out of orchards gardens and nursery grounds &-c.
6 Geo. IV. c. 127.
Permitting vessels to depart out of quarantine without authority, giving false certifi-
cate &c. 6 Geo. IV. c. 78. ^ 21. 25.
HISTORIA PLACITORUM CORONA. 749
Forgery of handwriting of receiver general or controller general of customs or of any
person duly authorized to act for them. 6 Geo. W. c. 106. § 27.
Fortrery of newspaper stamps or stamping papers with forged stamps or uttering papers
with forged stamps &.C. 6 Geo. IV. c. 119. § 6.
Smuggling. 6 Geo. IV. c. lOS. ^ 56.
As to felonies for malicious injuries to property, see 7 »fe 8 Geo. IV. c 30. repealing
the old laws and consolidating and amending the laws of England relative to malicious
injuries. See 29 Statutes at Large, p. 90.
The act for consolidating and amending the statutes of England relative to offences
against the person has repealed most of the old acts and substituted its own provisions.
See 29 vol. Statutes at Large, p. 370.
An act to remove doubts as to the liability of lords and peers of parliament to punish-
mcnt in certain cases of felony. 4 &, 5 Vict. c. 22. 33 Statutes at Large 781.
NOTE TO PAGE 516^.
" Silent leges inter arma" — the laws are silent in the midst of arms — said the great
Roman orator. During our quarter of a century of war, the laws held on their course;
but few had the courage to question the wisdom of that course, and still fewer the leisure
to attend to any suggestions of improvement. The daring adventurer who then mounted
the car of progress had to guide it, self-balanced, over the single rib of steel which spanned
the wide gulf between the land of reality, and the land of promise. Romilly was the
foremost amongst the courageous spirits who risked something for the amelioration of
the lot of their fellow men. In 1516 Sir Thomas More wrote, " I think it not right
nor justice that the loss of money should cause the loss of man's life: for mine opinion
is, tliat all the goods in the world are not able to countervail man's life. But if they
would thus say that the breaking of justice, and the transgression of laws is recompensed
with this punishment and not the loss of the money, then why may not this extreme and
rigorous justice well be called plain injury? For so cruel governance, so straight rules
and unmerciful laws be not allowable, that if a small offence be committed by and bye
the sword should be drawn: nor so stoical ordinances are to be borne withal, as to count
all offences of such equality that the killing of a man, or the taking of his money from
him were both one matter." In 1816 Sir Samuel Romilly carried a bill through the
House of Commons abolishing capital punishment for shoplifting which had been rejected
by that house three years before. The House of Lords however threw out this bill; and
on that occasion three hundred years after Sir Thomas More had proclaimed the. opinion
wljich we have just recited, Lord EUenborough the lord chief justice, "lamented that
any attempts were made to change the established and well-known criminal law of the
country which had been found so well to answer the ends of justice."
The history of the reform of our criminal law presents one of the most encouraging
examples of the unconquerable success of the assertion of a right principle when it is
perseveringly advocated and never suffered to sleep and when above all the reformation
is attempted step by step, and the prejudices of mankind are not assailed by the bolder
course which appears to contemplate destruction and not repair. The name of reform
in the criminal laws had not been heard in the Mouse of Commons for fifty-eight years
when in 1808, Romilly carried his bill for the abolition of the punishment of death for
privately stealing from the person to the value of five shillings: in other words for pick-
ing pockets. It is instructive to see how through the force of the circumstances around
him Romilly approached the subject of this reform with a caution which now looks
almost like weakness. His object was originally to raise the value according to which
a theft was rendered capital. In January 1808 he gave up the intention of bringing
forward even this limited measure — he was sure the judges would not approve of it. To
another distinguished lawyer belongs the merit of having urged Romilly to a bolder
policy. His friend Scarlett, he says, "had advised me not to content myself with merely
raising the amount of the value of property, the stealing of which is to subject the
offender to capital punishment, but to attempt at once to repeal all the statutes which
punish with death mere thefts unaccompanied by any act of violence or other circum-
stance of aggravation. This suggestion was very agreeable to me. But as it appeared
to me that I had no chance of being able to carry through the house a bill which was to
expunge at once all these laws from the statute-book, I determined to attempt the re-
peal of them one by one; and to begin with the most odious of them, the act of Queen
Elizabeth which makes it a capital offence to steal privately from the person of another."
750 HISTORIA PLACITORUM CORON.E.
Upon this prudential principle Romilly carried his first reform in 1808. But the House
of Commons, which consented to pass tlie bill forced upon him the omission of its pream-
blc: — "Whereas the extreme severity of penal laws hath not been found effectual for tlie
prevention of crimes: but on the contrary by increasing the difficulty of convicting
offenders in some cases affords them impunity and in most cases renders their punish-
ment extremely uncertain." The temper with wliicli too many persons of rank and
influence received any project of amelioration at the betrinning of this century is forcibly
exhibited in an anecdote which Romilly has preserved for our edification : "If any person
be desirous of having an adequate idea of the mischievous effects which have been pro-
duced in this country by the French revolution and all its attendant horrors, he should
attempt some legislative reform, on humane and liberal principles. He will then find not
only what a stupid dread of innovation but what a savage spiiit it has infused into the
minds of many of his countrymen. I have had several opportunities of observing this.
It is but a few nights ago that while I was standing at the bar of the House of Commons
a young man the brother of a peer whose name is not worth setting down, came up to
mc and breathing in my face the nauseous fumes of his undigested debauch, stammered
out ' I am against your bill ; I am for hanging all.' I was confounded : and endeavour,
ing to find out some excuse for him I observed that I supposed he meant that the cer-
taintv of punishment affording the only prospect of suppressing crimes the laws what-
ever they arc ought to be executed. ' No, no,' he said, ' it is not that. There is no good
done by mercy. They only get worse. I would hang them all up at once.' "
In 1810 Sir Samuel Romilly brought in three bills to repeal the acts which punished
with death the crimes of stealing privately in a shop goods of the value of five shillings,
and of stealing to the amount of forty shillings in a dwelling-house or on board vessels
in navigable rivers. The first bill passed the House of Commons but was lost in the
Lords. The other two were rejected. In 1811 the rejected bills were again introduced
with a fourth bill abolishing the capital punishment for stealing in bleaching-grounds.
Tiie four bills were carried through the House oFCommons; but only that on the subject
of bleacliing-grounds was sanctioned by the Lords. The constant argument that was
employed on these occasions against the alteration of the law was this, that of late years
the offences which they undertook to repress were greatly increased. Justly did Rom-
illy say, " A better reason than this for altering the law could hardly be given." On
the 24th of May, 1811, when three of the bills were rejected in the House of Lords, Lord
Ellenborough declared, ''They went to alter those laws which a century had proved to
be necessary and which were now to be overturned by speculation and modern philoso-
phy." The lord chancellor Eldon on the same occasion stated that he had himself early
in life felt a disposition to examine the principles on which our criminal code was
framed, " before observation and experience had matured his judgment." Since how-
ever he had learnt to listen to these great teachers in this important science his ideas had
greatly changed, and he saw the wisdom of the principles and practice by which our
criminal code was regulated. In 1813 Sir Samuel Romilly's bill for the abolition of
capital punishment in cases of shoplifting was carried by the Commons in the new par-
liament, but it was again rejected in the House of Lords. No further attempt was made
towards the amelioration of this branch of our laws till the year 1816; which attempt
we have now more particularly to record.
On the 16th of February Sir Samuel Romilly obtained leave to bring in a bill repeal-
ing the act of William the Third, which made it a capital offence to steal privately in a
shop to the value of five shillings. He described this act as the most severe and san.
guinary in our statute book, inconsistent with the spirit of the times in which we lived,
and repugnant to the laws of nature which had no severer punishment to inflict upon the
most atrocious of crimes. As recently as 1785 no less than ninety-seven persons were
executed in London for this oftence alone ; and the dreadful spectacle was exhibited of
twenty suffering at the same time. The capital sentence was now constantly evaded by
juries committing a pious fraud and finding the property of less value than was required
by the statute. The consequence of severe laws never executed was that crime went
on to increase, and the crimes of juvenile offenders especially. On moving the third
reading of the bill on the 15th of March, Sir Samuel Romilly called attention to the
great number of persons of very tender age who had recently been sentenced to death for
pilfering in shops. At that moment there was a child in Newgijte not ten years of age
under sentence of death for this offence; and the Recorder of London was reported to
have declared that it was intended to enforce the laws strictly in future, to interpose
some check if possible to the increase of youthful depravity. The bill passed the Com-
mons, but was thrown out in the Lords on the 22d of May. On this occasion the lord
HISTORIA PLACITORUM CORON.E. 751
chief justice agreed with the lord chancellor, "that the effect of removing the penalty of
death from other crimes had rendered hi(n still more adverse to any new experiment of
this kind. Since the removal of the vague terror which hung over the crime of stealing
from the person the number of offences of that kind had alarmingly increased. Though
the punishment of death was seldom inflicted for crimes of this nature, yet the influence
which the possibility of capital punishment had in the prevention ot crimes could scarcely
be estimated except by those who had the experience in the operation of the criminal
law which lie had the misfortune to have. When it was considered that the protection
of the property in all shops depended on the act before them, and that even now thefts of
that description were numerous, the bouse would not he trusted, take measures to increase
them."
When we look back on the debates upon the criminal law, from 1809 to 1816, and
see how little was asked by Romiily, and refused to him, compared with the amount yf
reform that has since been accomplished, we can only regard the arguments for the sup-
port of the ancient system of capricious terror as the arguments of men slowly and pain-
fully emerging from barbarism.
When, in the time of Henry VI. more persons were executed in England in one year
for highway robbery than the whole number executed in France in seven years; when,
in the reign of Henry VIII. seventy-two tliousand thieves were hanged, being at the
rate of two thousand a year; and when, in the reign of George III. as we have seen,
twenty persons Were executed on the same morning in London, for privately stealing —
we see the principle of unmitigated ferocity, the savagery which applies brute force as
the one remedy for every evil, enshrined on the judgment-seat. Tlie system went on
till society was heart-sick at its atrocities, and then rose up the equivocating system
which lord chancellors, and lord chief justices, and doctors in moral philosophy, upheld
as the perfection of human wisdom — the system of making the lightest as well as the
most enormous offences ^pital, that the law might stand up as a scare-crow — an old,
ragged, ill-contrived, an^ideous mawkin — that the smallest bird that habitually pilfered
the fields of industry despised while he went on pilfering. With the absolute certainty
of experience that bloody laws rigorously administered did not diminish crime, the legis-
lators of the beginning of the nineteenth century believe, or affected to believe, that the
same laws scarcely ever carried into execution would operate through the influence of
what they called " a vague terror." As if any terror, as a preventive of crime or a mo-
tive to good, was ever vague. The system was entirely kept in existence by the incom-
petence and idleness of the law-makers and the law-administrators. A well-digested
system of secondary punishments never seemed to them to be within the possibility of
legislatiori. We are very far from the solution of this great problem in our own days;
but we have made some steps towards its attainment.
The revolting cruelty and the disgusting absurdity of our criminal laws, thirty years ago,
were in perfect harmony with the system of police, which had then arrived at its perfec-
tion of imbecile wickedness. The machinery for the prevention and detection of crime
was exactly accommodated to the machinery for its punishment. On the 3d of April,
on the motion of Mr. Bennet, a committee of the House of Commons was appointed to
inquire into the state of the police of the metropolis. The committee was resumed in
1817; and two reports were presented, which were amongst the first causes of the
awakening of the public mind to a sense of the frightful evils which were existing in
what we flattered ourselves to be the most civilized city in the world. Twelve years
after, a committee of the House of Commons thus described the police system of 1816
and 1817 : — " If a foreign jurist had then examined the condition of the metropolis, as
respected crime, and the organization of its police — and if, without tracing the circum-
stances from which that organization arose, he had inferred design from the ends to
which it appeared to conduce — he might have brought forward plausible reasons for
believing that it was craft.ily framed by a body of professional depredators, upon a calcu-
lation of the best means of obtaining from society^ with security to themselves, the
greatest quantity of plunder. He would have found the metropolis divided and subdi-
vided into petty jurisdictions, each independent of every other, each having sufficiently
distinct interests to engender perpetual jealousies and animosities, and being sufficiently
free from any general control to prevent any intercommunity of reformation or any unity
of action." Another committee of the House of Commons reporting in 1833, says of the
same system, "The police was roused into earnest action only as some flagrant viola-
tion of the public peace, or some deep injury to private individuals, impelled it into exer-
tion; and security to persons and property was sought to be obtained, not by the activity
and wholesome vigour of a preventive police, which it is a paramount duty of the State
752 HISTORIA PLACITORUM CORONA.
to provide, but by resorting from time to time, as an occasional increase of the more vio-
lent breaciies of the law demanded it, to the highest and ultimate penalties of that law,
in the hope of checking tlie more desperate oflenders." The same report says, *' Flash-
houses were tiicn declared to be a necessary part of the police system, where known
thieves, with tlie full knowledge of the magistrates and public officers, usscinbled, until
the State, or individuals from the losses they had sustained, or the wrongs they had suf-
fered, bid high enough for their detection. Flash-houses, known in the scientific phrase-
ology of the police as " flash-cribs" " shades" and " infcrnals" were filthy dens, where
thieves and abandoned females were always t.o be found, riotous or drowsy, surrounded by
cliiidren of all ages, qualifying for their degrees in the college of crime." " There," says
a Middlesex magistrate, examined before the committee of 1816, " they (the children)
see thieves and thief-takcrs sitting and drinking together on terms of good-fellowship;
all they see and hear is calculated to make them believe they may rob without fear of
punishment, for in their thoughtless course they do not reflect that the forbearance of the
officers will continue no longer than until they commit a forty-pound crime, when they
will be sacrificed." A forty-pound crime ! the phraseology is as obsolete as if it were
written in the pedlar's French of the rogues of the sixteenth century. A forty-pound
crime was a crime for whose detection the State adjudged a reward, to be paid on con-
viction, of forty-pounds ; and, as a necessary consequence, the whole race of thieves were
fostered into a steady advance from small offi^nces to great, till they gratefully ventured
upon some deed of more than common atrocity, which should bestow the blood-money
upon the officers of the law who had so long petted and protected them. The system
received a fatal blow in 1816, in the detection of three officers of the police, who had
actually conspired to induce five men to commit a burglary for the purpose of obtaining
the rewards upon their conviction. The highwaymen who infested the suburbs of the
metropolis had been eradicated — they belonged to another age. Offi;nccs against the per-
son were rarely connected with any olFences against propertji* But the uncertainty of
punishment, the authorized toleration of small offenders, ana the organized system of
negotiation for the return of stolen property, had filled the metropolis with legions of expe-
rienced depredators. The public exhibitions of the most profligate indecency and bru-
tality can scarcely be believed by those who have grown up in a different state of society.
When Defoe described his Colonel Jack, in the days of his boyish initiation into vice,
sleeping with other children amidst the kilns and glass-houses of the London fields, we
read of a state of things that has long passed away ; but, as recently as 1816, in Convent
Garden Market, and other places affording a partial shelter, hundreds of men and women,
boys and girls, assembled together, and continued during the night, in a state of shame-
less profligacy, which is described as presenting a scene of vice and tumult more atrocious
than any thing exhibited even by the lazzaroni of Naples. — Knight's Hist, of Eng, B, I.
c. 7. Land. 1846-7.
END OF THE FIRST VOLUME.
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